FEDERAL COURT OF AUSTRALIA

AWN16 v Minister for Immigration and Border Protection [2020] FCA 1095

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka of Hindu Tamil ethnicity. He arrived in Australia by boat as an unauthorised maritime arrival in 2012. On 14 November 2012 the appellant made an application for a Protection (Class XA) visa. On 4 February 2014 a delegate of the Minister for Immigration and Border Protection (as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was then known) refused to grant the application on the basis that the appellant did not satisfy cl 866.222 of sch 2 to the Migration Regulations 1994 (Cth). As a result of the application of cl 866.222, the delegate did not make any findings about the appellant’s substantive claims for protection. On 12 February 2014 the appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

2    The Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), which introduced cl 866.222, was disallowed in the Senate on 27 March 2014. As a result, the Tribunal at [15] – [16] of its reasons found that it had no application for the purposes of its review of the matter. The Tribunal then proceeded to assess the appellant’s substantive claims for protection, and on 24 March 2016 it affirmed the delegate’s decision not to grant the appellant a protection visa.

3    The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the Tribunal’s decision. On 24 October 2019 a judge of that court upheld the decision of the Tribunal: AWN16 v Minister for Immigration & Anor [2019] FCCA 3033.

4    The appellant now appeals to this Court from the FCCA’s decision. He relies on the following grounds (particulars omitted):

(1)     The [FCCA] at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

(2)     The [FCCA] at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it was unreasonable.

(3)     The [FCCA] at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

5    The appellant filed written submissions in advance of the hearing, where he was represented by Mr Anthony Krohn of counsel. The Minister also filed written submissions. He was represented by Mr Andrew Roe of counsel.

2.    GROUND 1 – ERROR IN APPLYING THE LAW

6    In ground 1 of the appeal the appellant contends that the FCCA erred in failing to find that the Tribunal erred in interpreting or applying s 415(2)(c) of the Migration Act 1958 (Cth) by failing to remit the matter to a delegate of the Minister for reconsideration with the direction that cl 866.222 of the Regulations was not a bar to the application for the visa, and therefore the delegate was to consider the appellant’s substantive claims on their merits. The appellant submits that in failing to do so the Tribunal prevented him from enjoying two opportunities for a determination of his claim on the merits, one by a delegate of the Minister and the other by the Tribunal.

7    By way of background, cl 866.222 operated as a filter for applications for protection visas, requiring the Minister to be satisfied that inter alia a visa applicant was not an unauthorised maritime arrival. The delegate concluded that the appellant did not meet the criteria for the grant of a protection visa because of that clause and accordingly did not consider the substantive claims advanced by the appellant for protection status within ss 36(2)(a) and 36(2)(aa) of the Act. The Tribunal found that cl 866.222 applied at the time of the decision of the delegate, but noted that by the time of its decision that clause had been disallowed by the Senate, with the consequence that cl 866.222 as it stood at the time of the delegate’s decision was no longer in force. The Tribunal was then confronted with a choice of what course to adopt, and determined that rather than remitting the matter to the Minister for determination it would proceed to review the application for the visa de novo. The Tribunal then conducted an extensive merits review of the application before affirming the delegate’s decision not to grant the appellant a protection visa.

8    The appellant contends that the course adopted by the Tribunal was in error. He submits that the Tribunal was obliged to remit the application for reconsideration by the delegate pursuant to s 415(2)(c) of the Act. I disagree.

9    Section 415 of the Act as it stood at the date of the decision of the Tribunal was entitled “Tribunal powers on review of Part 7-reviewable decisions”. It provided as follows:

(1)    The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

 (2)     The Tribunal may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)    set the decision aside and substitute a new decision; or

(e)    if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

10    The text of the provision empowers the Tribunal to review a decision in one of the five ways set out in s 415(2). As the Minister submits, it also indicates that Parliament has turned its mind to the boundaries of the manner in which the Tribunal may determine a decision, through s 415(4). Other than this constraint, the section confers a discretion upon the Tribunal to select the course that it considers appropriate to take.

11    The appellant in his submissions seeks to isolate s 415(2)(c), and constrain the action that the Tribunal may take to the option provided in s 415(2)(c) to the exclusion of the others listed. He relies on the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), which established the Refugee Review Tribunal (which has since been merged into the Tribunal), and which says:

[40]     The Bill creates the Refugee Review Tribunal (RRT), in place of the Refugee Status Review Committee, to provide determinative independent merits review of refugee status matters.

[41]     The creation of the RRT completes an initiative begun in 1989 to provide for independent and determinative review of Migration Act decisions. The new Refugee Review Tribunal will provide quality independent merits review at a low cost.

12    The appellant submits that in almost every case the review by the Tribunal is a review of a substantive decision by a delegate. He submits that it was the intention of Parliament, as evinced by the Explanatory Memorandum, that an applicant not be shut out from an opportunity to have protection claims assessed twice on the merits of the evidence and the arguments about risk of harm.

13    In my respectful view, this ground is misconceived. The language of s 415(2) provides no textual basis upon which it may be said that there is such a limitation on the Tribunal’s power to determine the appropriate course to take. It has a discretion (“may”) to choose. There is no requirement that before the Tribunal adopts a decision to conduct a de novo review the delegate must first have made substantive findings. This may perhaps be demonstrated by the fact that a review body such as the Tribunal is not deprived of jurisdiction to make a decision by reason of the existence of error, even jurisdictional error, in the earlier delegate’s decision which it is asked to review: SZGME v Minister for immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at [25]. A fortiori where, as here, the delegate did not fall into error.

14    The learned primary judge found (original emphasis):

[11]     There is no suggestion that the Tribunal did not undertake a “determinative independent merits review of refugee status matters” relating to the applicant. The explanatory memoranda to the Migration Reform Bill 1992 (Cth) – paragraphs 40 and 41 – do not relevantly assist. It was conceded on behalf of the first respondent that for the purposes of s. 415(2)(c) of the Act, an application for a protection visa was prescribed. That concession did not affect the Tribunal’s capacity to exercise its powers of review in respect of the delegate’s decision to refuse to grant the protection visa. Such decision was a “Part 7-reviewable decision” as defined in s. 411 of the Act. The Tribunal carried out the task of providing a determinative independent merits review of the decision before it. That decision was the decision to refuse to grant the visa. The Tribunal affirmed the decision according to law. There is no merit to Ground 1.

15    I do not consider that the primary judge erred in so concluding. Ground 1 must be dismissed.

3.    GROUND 2 – LEGALLY UNREASONABLE

16    In ground 2, the appellant contends that the FCCA erred in not finding that the Tribunal fell into jurisdictional error because the Tribunal’s decision was unreasonable. The particulars relied upon are as follows:

(a)     The Tribunal was unreasonable in finding "that the applicant is not a credible or truthful witness. I believe that he has concocted, exaggerated or distorted many of his claims." (Tribunal's decision record [84]; CB 302)

(b)     The Tribunal was unreasonable in rejecting the appellant's evidence about demands for money with threats as "vague claims" or "vague and inconsistent". (Tribunal's decision record [85]-[86]; CB 303)

(c)     The Tribunal was unreasonable in rejecting the appellant's evidence about being attacked in 2009 by the Karuna Group as "concocted". (Tribunal's decision record [90]-[91]; CB 303)

(d)     The Tribunal was unreasonable in rejecting as "untrue and ... concocted" the appellant's evidence about him suffering detention and harsh treatment after leaving illegally and being detained in 2009 (Tribunal’s decision record [92] – [96]; CB 304)

(e)     The Tribunal was unreasonable in finding and relying on "the applicant's demonstrated willingness to fabricate claims". (Tribunal's decision record [97]; CB 304)

(f)     The Tribunal was unreasonable in finding that when the appellant and some friends were detained by drunken police at the time of Tamil [N]ew Year, "there is nothing in the evidence which suggests that the applicant and his friends were detained for any of the reasons in the Convention.". (Tribunal's decision record [100]; CB 305)

(g)     The Tribunal was unreasonable in finding and relying on "the applicant's willingness to fabricate claims". (Tribunal's decision record [100]; CB 304)

(h)     The Tribunal was unreasonable in finding that when the appellant was robbed in 2011, "even if the men were soldiers out of uniform, there is nothing in the evidence which suggests that this was anything but a random robbery". (Tribunal's decision record [102]); CB 306)

(i)     The Tribunal was unreasonable in finding and relying on "the applicant concocted and embellished most of his claims". (Tribunal's decision record [108]; CB 306)

(j)     The Tribunal was unreasonable in finding and relying on "the applicant's willingness to concoct claims". (Tribunal's decision record [117]; CB 308)

(k)     The Tribunal was unreasonable in that it referred to no evidence or basis or reason for not accepting the appellant's claim to fear harm on return because of "suspicion that he belongs to or supports the LTTE". (Tribunal's decision record [124]); CB 309)

17    The principles concerning legal unreasonableness are not in dispute.

18    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [40] Gummow ACJ and Kiefel J (as her Honour then was) cited the following passage from Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992:

[38]     The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

19    In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Hayne, Kiefel (as her Honour then was) and Bell JJ said (citations omitted):

[67]     … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

[68]     Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. …

20    In my view the reasons of the Tribunal reflect a careful and thorough review of the evidence given by the appellant. The hearing itself was somewhat unusual, because the presiding member who initially conducted a hearing over two days in early 2015 subsequently left the Tribunal and the case was reconstituted by another member, who resumed the hearing over two days in October 2015 and delivered reasons. That member sets out a detailed review of the claims and the evidence, some of which I summarise below.

21    The Tribunal notes that the appellant was first interviewed on 14 August 2012, in his entry interview. At that point he advanced claims that he worked with his brother V’s construction business from 2008 until 2010 and thereafter at an electronics shop, but it closed. No claim was advanced in relation to the shop, but he claimed that he and his brother received calls from either the Karuna group or maybe the army, demanding that he pay money or they would be killed.

22    He also made claims about an incident where a van came up behind him and caused a crash, but provides no additional detail. He also refers to an incident at Tamil New Year in April 2010 which the Tribunal described as “somewhat confused”, but involved the appellant and friends being fired at by men in a jeep and the appellant being taken to a police camp where he was detained for three hours.

23    The appellant also referred to an incident on 3 May 2011, when he was approached by two men on a motorbike who demanded that he give them the truck that he was driving, which belonged to his brother. He refused, but another bike arrived and men took his purse and drove off. He believed the men were from the army as he had previously seen them wearing uniforms. The incident was reported to the police.

24    The Tribunal then refers separately to the appellant’s application for a protection visa dated 28 November 2012, where he advanced claims that were different or varied from those advanced in the entry interview. He said that the shop he and his brother had was forced to close the shop because people demanded payments and the police would not protect him because of his race and religion. He added a claim that some drunken police had tried to take his bike. He said his brother had sent the appellant and his younger brother away because he feared that he would continue to face threats and extortion, and would not be given protection by the authorities because of his Tamil ethnicity.

25    A new claim was advanced in an email of 26 September 2013 sent to the delegate, where the appellant’s advisors detailed a claim that the appellant had been imprisoned in 2009 for attempting to leave Sri Lanka illegally and had been visited by the Human Rights Commission while in gaol. A further claim was advanced that his family had been visited by unknown people in July 2013 after a news article reported that his brother had hosted a dinner for the Tamil National Alliance. The unknown people had broken into the family home and demanded money. His mother and sister were injured.

26    The Tribunal then refers to the interview between a delegate of the Minister conducted on 2 October 2013. In it, yet further new claims were advanced. In one, the appellant said that in 2008 a break-away group from the Liberation Tigers of Tamil Eelam (LTTE) moved and set up camps nearby, and he and his brother had to supply them with anything they required. He provides details of riding a new bike, being hailed to stop by members of the group, and refusing to stop because he feared the bike being stolen. Later, he said, he was attacked by the group, who beat him and told him not to complain to the police or he would be shot. He required 14 stitches to the head as a result.

27    The appellant claimed to have then decided to leave the country. However, the boat he was on was intercepted by the Navy and he was detained. He said that the Red Cross visited him while he was in detention and gave him a card. After a month in detention he was taken to court, and then transferred to Matara Prison. He went to court and after 3 months was released on bail. He was charged with illegal departure, fined and banned from leaving the country. He was told if he re-offended he would face a five year sentence.

28    The appellant provided the Tribunal with four documents in support of his claim, including;

    a copy of a card issued to him by the International Committee of the Red Cross;

    a copy of a card from the Human Rights Commission of Sri Lanka dated 14 December 2009, which the appellant said records a complaint made by his father;

    a copy of what the Tribunal noted was a partial document containing a number of dates and a list of suspects. The appellant claimed that it records the outcome of the case against a number of people said to have pleaded guilty to departing the country illegally; and

    an English translation of part of that document which recorded the sentences imposed.

29    The Tribunal records that in the October 2013 interview the appellant also claimed that in about August 2013 his family had been the subject of further extortion demands.

30    The Tribunal then referred to the hearings conducted over two days in early 2015, where the first Tribunal member presided. It is apparent that the presiding member closely considered the evidence given by the appellant, either by reviewing a transcript or listening to audio tapes.

31    The Tribunal records that when the appellant was asked why he did not want to return to Sri Lanka, he spoke in detail about the incident that occurred during Tamil New Year in 2010. In it, the appellant claimed that plainclothes policemen approached him and two friends asking for their identity documents. They refused to show the documents, but said that they would accompany the police to the police station. The police did not agree to this and began to beat them. Soon after, a jeep with six or seven uniformed police arrived and started shooting. The appellant and his friends were beaten and taken to the police station where someone threatened to shoot them. His brother secured his release after about two hours. It will be noted that this version of events differs somewhat from the earlier Tamil New Year explanation as described at [22] above.

32    The appellant was questioned about why he had not advanced this claim and the claim about his 2009 illegal departure from Sri Lanka earlier. He was also questioned about the documents that he had produced in 2013.

33    The Tribunal notes that the appellant advanced further detail in relation to his claim regarding threats received while he was working at the electronics shop in 2011. He said that he received threats over the telephone from people who demanded money, and people from the army also came to the shop and took things without paying. They told him to go to the army camp for payment, but when he went they refused to pay, and hit him. The Tribunal noted that earlier the appellant had mentioned that the shop had closed, but had not mentioned the other details.

34    The Tribunal continued painstakingly to review the claims made by the appellant. It refers to further information provided by the appellant in writing on 7 July 2015, and then summarises the oral evidence given by the appellant to the Tribunal as it was finally constituted. It is unnecessary to address the summary in detail. Suffice it to say, the Tribunal records questioning the appellant closely about inconsistencies in his earlier evidence and seeking clarification of his version of events. Two aspects of the evidence warrant further mention.

35    First, the Tribunal refers to a discussion with the appellant about his claimed illegal departure from Sri Lanka in 2009. Note is taken about various irregularities in the four documents proffered as corroboration for the event, including going to the dates referred to in them. Secondly, the Tribunal notes that during the entry interview the appellant said he had never been arrested or detained in Sri Lanka, which was inconsistent with his more recent claims. In addition, the Tribunal notes that whilst the appellant had in his entry interview mentioned that he had been briefly detained on Tamil New Year in 2010, he had never mentioned being detained and beaten in 2009 because he had attempted to leave Sri Lanka illegally.

36    Having regard to the thorough review of the evidence conducted by the Tribunal, much of which is set out in some detail in its reasons, I am of the firm view that the reasons of the Tribunal do not reflect an irrational or unreasonable basis for rejecting the claims advanced by the appellant. More particularly, in my view there was adequate material to form the basis for the conclusion, expressed in each of the particulars contained in paragraphs (a) to (e), (g), (i) and (j) of ground 2, that the appellant had concocted, exaggerated or distorted many of his claims. The reasons of the Tribunal are redolent of inconsistencies and later added material concerning the claims advanced by the appellant. They form an adequate basis to resist the challenge that the reasons were legally unreasonable. The balance of the complaints made in the particulars appended to ground 2 rise no further than amounting to complaints about the factual findings of the Tribunal. They provide no separate basis for a finding of jurisdictional error.

37    The primary judge did not err in concluding that ground 2 should be dismissed.

4.    GROUND 3 – FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION

38    In ground 3 the appellant contends that the FCCA erred in not finding that the Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact. The particulars appended to the ground rely on one matter, namely that the Tribunal failed to exercise its power to inquire into corroborative documents from the Sri Lankan court, the International Committee of the Red Cross and the High Commissioner for Human Rights. He submits that this is a case where, like in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25], there is an “obvious inquiry about a critical fact, the existence of which is easily ascertained”, namely whether the documents from the Red Cross and the Human Rights Commission of Sri Lanka were genuine. In oral submissions the appellant pointed to the fact that a distinctive registration number and a telephone number appear on the face of the Red Cross card. The appellant submits that the Tribunal failed to consider the exercise of its power to inquire as to whether important corroborative documents were present.

39    In my view ground 3 is not made out. The Tribunal does not have a duty to make its own inquiries in order to make the appellant’s case or to investigate the appellant’s claims. In SGLB the High Court (Gummow ACJ and Kiefel J) said of a similar argument (citations omitted):

[43]     This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. 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.

40    In the present case, there was evidence available for the Tribunal to form the view that the documentary materials advanced in corroboration of the claims were unreliable. These included country information that forgery of official documents in Sri Lanka is not uncommon, the general unreliability of the appellant’s version of events, the inconsistencies identified by the Tribunal between the documents proffered and the appellant’s failure, despite assurances that he would do so, to provide the originals of the documents, which were said to be in the possession of his family in Sri Lanka. As the Full Court has observed in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; 151 FCR 214 at [76], “[i]n an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction”.

41    The appellant did not point to any authority which suggested that a failure by the Tribunal to consider the exercise of its power to inquire could constitute jurisdictional error. As the Full Court said in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25]: “… it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power …”. The High Court upheld that view as correct in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [22] (per French CJ and Kiefel J, Heydon and Crennan JJ separately agreeing).

42    I am not satisfied that the Tribunal erred in failing to consider exercising its power to inquire, or in failing to exercise its power to inquire. The primary judge did not err in concluding that this ground should be rejected.

5.    DISPOSITION

43    Accordingly, for the reasons given, the appeal must be dismissed. I will make the following orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs.

Associate:

Dated:    31 July 2020