BZABI v Minister for Immigration and Citizenship

INTRODUCTION 1 The appellants appeal from the decision of a Federal Magistrate in BZABI & Anor v Minister for Immigration and Citizenship & Anor [2012] FMCA 286. In that decision the Federal Magistrates Court dismissed the appellants' application seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 4 July 2011. In that decision the Tribunal affirmed an earlier decision of a delegate of the first respondent (the Minister) dated 17 February 2011 to decline to grant the appellants a protection (class XA) visa. 2 The Federal Magistrates Court concluded that there was no jurisdictional error.

BACKGROUND 3 The appellants are respectively wife and husband. They are citizens of Sri Lanka. The first named appellant (the appellant) has made claims for protection. The second named appellant (the husband) applies as a member of her family unit. The appellant arrived in Australia on a student visa on 24 October 2008. She applied for a protection (class XA) visa on 17 August 2010. 4 The appellant claims that she is a Sri Lankan Tamil of the Muslim religion. She married in December 2007. Her husband is also of Tamil ethnicity. She claims that her father had a political profile amongst Muslim Tamils in the Kandy District. She claims that he was good friends with a government minister, Mr Ashraf and that he was arrested and interrogated when Mr Ashraf was killed in a helicopter crash. 5 The appellant also claims she was a member of the Sri Lankan Muslim Congress (SLMC). In the 2008 eastern provincial council elections, she claims that she canvassed support for the SLMC. In addition, she claims that she worked for Mr Rauff Hakeem who was contesting the election against Pillayan, who defected from the Liberation Tigers of Tamil Eelam (the LTTE) and was with the Karuna Group. She points to the fact that Mr Hakeem lost the election. She claims that she was active in promoting the SLMC to Muslims and in encouraging Tamils to vote for the Tamil National Alliance (TNA). In consequence of all of this, she claims that she was imputed with a pro-LTTE political opinion and became the subject of adverse attention from the government and paramilitaries including the Karuna Group. She says she was forced to go into hiding in her uncle's house until arrangements were made for her to obtain a student visa and to travel to Australia on 24 October 2008. 6 In the statement made by the appellant, she contends that in June 2010 cadres from the Karuna Group visited the family home in Sri Lanka and took her father for interrogation. Details were sought of the appellant's involvement with the LTTE. She contends that her father was threatened that if she was returned to Sri Lanka they would both be killed. 7 She claims that she fears serious harm from the police and paramilitary groups on the basis of her Tamil ethnicity and her imputed support of the LTTE given her family involvement and her involvement in politics as discussed above.

THE DECISION OF THE DELEGATE 8 The Delegate rejected the appellant's claims. She attended an interview with the Delegate on 31 January 2011. On 17 February 2011, the Delegate found that the appellant's delay between arriving in Australia on 24 October 2008 and applying for the protection visa almost two years later on 17 August 2010 undermined the genuineness of her subjective fear of persecution. 9 The Delegate also relied on evidence at the interview that the appellant had applied for a protection visa because she did not want to be financially dependent upon her father and that she had spoken to her family the night before the interview and they confirmed that they had not had any problems. 10 The conclusion of the Delegate was that while the appellant might be fearful of being attacked by the Karuna Group, any actions of that group which might generate such a fear would be criminal in nature. The fear would not be based on a Convention reason. The Delegate concluded that the appellant did not have the profile of someone who would be of adverse interest to the Sri Lankan authorities. She would not be of adverse interest if she returned to Sri Lanka. Her ability to leave unimpeded suggested that she was not of adverse interest at the time she departed.

IN THE TRIBUNAL 11 The appellants applied to the Tribunal to review the decision of the Delegate. The appellant was invited by letter on 6 April 2011 to attend the hearing before the Tribunal on 31 May 2011. She accepted the invitation. She attended with her husband. Following the hearing, the appellant provided to the Tribunal a letter from Minster Hakeem dated 10 June 2011 in relation to her claims to have participated in the election campaigns and to have canvassed for him and the SLMC. 12 The Tribunal subsequently in its decision of 4 July 2011 affirmed the Delegate's decision to refuse the appellant's application for a protection visa. The Tribunal rejected the appellant's substantive claims to fear harm. 13 Essentially the Tribunal's conclusion was based on adverse credibility findings. In particular, the Tribunal did not accept that the appellant canvassed support from the SLMC or any other political party during the 2008 elections. The Tribunal noted that although she claimed to have told Tamils to vote for the TNA, independent country information indicated that TNA boycotted those elections. The Tribunal gave no weight to the letter from Mr Hakeem because it referred to the appellant campaigning for an election in 2007 and not in 2008 as the appellant had claimed. 14 As a consequence, the Tribunal rejected the contention of the appellant that she had been imputed with a pro-LTTE political opinion. It did not accept that her father was abducted and interrogated. It concluded her account of the abduction was unreliable and she had given inconsistent versions as to who had abducted her father. The Tribunal did not accept that she was a member of the SLMC or otherwise active in politics given her level of knowledge of relevant politics demonstrated by her at the Tribunal hearing. 15 The Tribunal did accept that the appellant's father had some knowledge of the SLMC events and had been involved in the party in the past but noted that he was no longer currently active in politics. It did not accept therefore that the appellant faced any real chance of harm on the basis of her father's political opinion nor that she did on the basis of membership of a particular social group, being her father's family. Relying on independent country information, the Tribunal did not accept that she faced a real chance of harm simply by reason of being a Tamil speaking Muslim.

BEFORE THE FEDERAL MAGISTRATE 16 The appellants lodged their application for judicial review of the Tribunal's decision on 8 August 2011. There were four grounds of review as follows:

Ground one 17 Ground one alleged that the Tribunal relied on 'wrong issues' in assessing the appellant's claims, disregarded 'the real fear' the appellant had and based its decision on the appellant's age and experience in politics. 18 The learned Federal Magistrate found that this ground sought a review of the merits of the Tribunal's decision and its assessment of the credibility of the appellant's factual claims. The Court correctly held that this was not an appropriate ground in an application for judicial review, in which an appellant must identify a jurisdiction error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272)). The Court was not concerned with whether the decision was unjust, only whether it was lawfully made.

Ground two 19 Ground two argued that the Tribunal 'acted as an arbitrator in rejecting and disbelieving' the appellant's claims and 'used excessive power and authority in rejecting the appellant's claims'. 20 The Court found that satisfaction of the criteria for the grant of the visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an appellant under the Refugees Convention (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 (at [14]-[16]; SZBCS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 25). Accordingly, the Court held that the Tribunal's findings were open to it for the reasons given. 21 The Tribunal was not required to accept the appellant's claims at face value. The weight to be given to her claims and evidence was a matter for the Tribunal alone to determine (Liang (at 281-282)).

Ground three 22 Ground three was that the Tribunal failed to afford the appellant procedural fairness by not giving her an opportunity to explain, in writing, 'any doubts' the Tribunal had. 23 The Federal Magistrate correctly noted that this was a case to which s 422B of the Migration Act 1958 (Cth) (the Act) applied. Accordingly, the Tribunal was not required to afford the appellant common law natural justice (Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). The appellant was entitled only to the rights afforded her under Pt 7 of the Act. Further, the Court held that the Tribunal's 'doubts' about the appellant's claims were not information for the purposes of s 424A(1) and, therefore, did not enliven the obligations under that section.

Ground four 24 Ground four of the application alleged that the Tribunal erred by not accepting the appellant's claims that her father was arrested and unfairly rejected the appellant's claims, misused its authority and 'knowingly ignored the relevant facts'. 25 The Federal Magistrate found again that this ground went no further than inviting the Court to undertake an impermissible review of the merits of the Tribunal's decision (Liang (at 272)). The Tribunal's finding that it did not accept that the appellant's father was abducted in June 2010 and interrogated about the appellant was open to it for the reasons it gave. 26 As the learned Federal Magistrate was satisfied that no jurisdictional error had been demonstrated, the application was dismissed with costs.

THIS APPEAL 27 On appeal to this Court, the appellants advance three grounds of appeal as follows: 1. Errors were made on the procedure adopted by the Tribunal and made further errors by exceeding its jurisdiction, constructively doubted the Appellant's claims and rejected on credibility grounds and thus made jurisdictional error. 2. The Respondents made a jurisdictional error by ignoring the subjective fear that the Appellant had under the Convention reasons and relied on wrong issues relating to the limited knowledge of the Appellant. 3. The First Respondent's (sic) used excessive authority and power in its subjective appraisals, thought processing and determinations and completely ignored the relevant fear of persecution the Appellant had from the criminal paramilitary elements and the government forces being a Tamil and thus made a jurisdictional error.

THE FIRST HEARING IN THIS COURT 28 When the appellant first appeared before me for the hearing of the appeal, she requested an adjournment of the hearing. The appellant had given birth to a child on 19 July 2012 and by reason of those events had been unable to engage solicitors or to instruct counsel. She told me that she had taken some steps to engage counsel in Sydney and hoped to meet with one or more counsel in the near future if an adjournment were granted as sought. While there was no evidence in support of the application and no notice of the application for an adjournment had been given, she explained that she was unaware of any requirement that either of those steps should be taken. 29 The Minister opposed the application for adjournment. With some reluctance, it appeared that the better course was to permit the adjournment for a short period of time, reserving costs of the first hearing day of the appeal. While the absence of evidence and the absence of notice were not best practice, given that the appellants were unrepresented and had very limited grasp of English, a brief adjournment was the preferable course. The matter was adjourned to be heard on 20 September 2012.

ARGUMENTS ON THE SECOND HEARING 30 For the purposes of the second hearing day of the adjourned appeal, the appellants filed written submissions which reiterated several factual points, namely, that as Sri Lankan Tamil speaking Muslims they had fled that country to Australia due to genuine fear of persecution in Sri Lanka. They retain that genuine fear of persecution should they be required to return. It was reargued that the appellant had pressed Muslims to vote for the SLMC and Tamils to vote for the TNA in the eastern provincial election in 2008. It was asserted that the Pillayan and Karuna groups 'misunderstood this and they thought the appellant was negotiating with LTTE to defeat Pillayan at the Provincial Council election'. The appellant submits that tension was thereby created amongst people in the eastern province. She claims that the Pillayan and Karuna groups have convinced the authorities in Sri Lanka that the appellant is a LTTE supporter. The appellant stresses that in Sri Lanka there are people who are uneducated and most of them do not understand politics. It needs to be explained to them by someone who can speak their language and who can interact with them. The appellant was a student at the time of the election and she could speak Tamil. She explained to the people why they should vote for the SLMC and the TNA.

Appeal ground one - procedural errors 31 The first ground of appeal is supported by a submission that according to the decision made by the Tribunal, the Tribunal had said that the appellant was not involved in politics because she was canvassing and encouraging people to vote for the TNA. What the appellant was actually doing was acting in accordance with the request by Mr Hakeem and the SLMC. It is asserted that the Tribunal made an error in contending that Minister Hakeem was a politician who often changed political parties. The appellant submits that Minister Hakeem's actions in regard to political change had nothing to do with the appellant's involvement in politics. The appellant argues that the Tribunal's reliance upon the error in the letter from Minister Hakeem (referring to an election campaign in 2007 and not 2008) was unreasonable. It is asserted that Minister Hakeem is 'still a human even though he is a respectable minister in Sri Lanka'.

Appeal ground two - jurisdictional error - ignoring the subjective fear on Convention reasons 32 In support of this ground it is submitted that the Tribunal disregarded the real fear the appellant had when she fled from Sri Lanka and based its refusal on the grounds of her age and experience in politics. It failed to realise that those who canvass in Sri Lanka are mostly uneducated supporters and sympathisers. The Tribunal, it is argued, misinterpreted and misused its authority and knowingly ignored relevant facts in reaching its adverse decision and thereby made jurisdictional error.

Appeal ground three - excessive authority and power and subjective appraisals ignoring the relevant fear of persecution 33 In support of this ground it is argued that in Sri Lanka there are stories told about people being kidnapped, interrogated and killed but no journalists can report or publish them. The appellant submits that the Tribunal erred by not accepting that the appellant's father was arrested and interrogated by the Sri Lankan authorities and the Karuna and Pillayan cadres regarding the whereabouts of the appellant. She further argues that the Tribunal erred by not considering that 'Mr Hakeem is a minister of the present government and the minister will be in trouble if the government finds out that he is speaking ill about the government'. It is argued that the Tribunal used excessive power and made the decision on its own and expected the appellant to answer questions which the Tribunal thought relevant but did not give the appellant an opportunity to explain or respond in writing to any doubts the Tribunal had.

THE ORAL ARGUMENT 34 The appellant relied on her written submissions but stressed that she had sustained an injustice in the course of her application. She wanted the Court to fully review her position. Counsel for the Minister made it clear that a merits review was not permissible and that no jurisdictional error had been made out.

A SUPPLEMENTARY QUESTION 35 This appeal was heard by the Court on 20 September 2012. On 21 September 2012, the Court raised the following issue with the parties following the hearing. The issue was not raised during the hearing: In the Refugee Review Tribunal decision, dated 4 July 2011, a written statement by the appellant is extracted at [25] at AB 145. In it she states: I was spending more time with Rauf (sic) Hakeem in Trincomalee along with Muslim ladies known to him canvassing against the Provincial Council candidate Pillayan who was contesting against him. Pilliayan was with Karuna after he defected from the LTTE. Karuna was working against Rauf (sic) Hakeen (sic) and when Hakeem lost the Provincial Council elected (sic), he moved to Colombo immediately. However, the second sentence in paragraph [4] of the Federal Magistrate's decision seems to suggest the opposite position, namely that she claimed that Mr Hakeem was with the Karuna group, not campaigning against it. It reads: "[The appellant] claims that she worked for a Mr Raf Hakim (sic), who had defected from the LTTE, and who was also with the Karuna group." 36 The Court asked the parties whether this was an error and if so what, if any, were the consequences of it.

Appellants' supplementary submissions 37 By supplementary submissions dated 1 October 2012, the appellant claims that the Federal Magistrate 'certainly' made a mistake that amounted to more than a slip. She states that she never mentioned in her statement that Mr Hakeem was with the Karuna Group or that he was a member of the LTTE or that he defected from the LTTE. The appellant states that Mr Hakeem was the leader of the Sri Lankan Muslim Congress and this was clearly set out in her statement. 38 The appellant's supplementary submissions also reiterate her ground of appeal in relation to the Federal Magistrate's finding that the Tribunal did not err when it placed no weight on the letter provided by Minister Hakeem because it referred to the appellant campaigning for an election in 2007 and not 2008. 39 The appellant also claims that the Delegate made factual errors in stating where she was born as well as her religion. The appellant points to the following sentences in the Delegate's decision of 17 February 2011: The [appellant] is a Sri Lankan Tamil of Hindu religion. She was born on 3/12/1985 at Nawalapitiya, Baticaloa in the Eastern Province of the Sri Lanka. 40 The appellant points out that, in fact, her statement reads: 'I am Sri Lankan Tamil speaking Muslim born in Navalapitiya (sic) in Sri Lanka'. She states that Nawalapitya is in the Kandy district, not in Baticaloa or the eastern province. 41 In summary, the appellant's supplementary submissions query whether the Tribunal understood the appellant's statement and whether it made 'a reasonable decision'. She concludes by pleading that this Court 'consider [her] situation and set aside the Tribunal's decision and give her another chance to prove that she deserves the protection of Australia'.

The Minister's supplementary submissions 42 By supplementary submissions filed on 25 September 2012, the Minister suggests that it may be that the Federal Magistrate was not actually in error. It is submitted that the decision was delivered ex tempore and his Honour was paraphrasing the background and the appellant's claims in [3] to [8] of his reasons. 43 The Minister submits: (a) The sentence referred to, in his Honour's reasons should probably read 'She also claims she worked for a Mr Raf Hakim (sic), who had defected from the LTTE, and who was also against the Karuna group'. That is, 'against' the Karuna group rather than 'with' the Karuna group. (b) This may have simply been 'a slip' by the Federal Magistrate, in delivering his reasons orally, on the day of the hearing, as this sentence is not consistent with the remainder of his Honour's reasons. (c) His Honour clearly appreciated that the Karuna group was against the appellant and her claimed political involvement by the following references: At [5]: She claims that as a result (that is, of her canvassing with Mr Hakeem), she was imputed with a pro-LTTE political opinion and became the subject of adverse attention from the government and paramilitaries, including the Karuna group. At [6]: She claims that in June 2010 cadres from the Karuna group visited her family home in Sri Lanka and took her father for interrogation. … (d) Therefore, taking into account the entirety of his Honour's reasons there is actually no error by the Federal Magistrate. (e) However, even if the Federal Magistrate did make an alleged error (which is not accepted for the reasons outlined above), it does not mean that his Honour should have found that Tribunal committed a jurisdictional error. (f) Unless the appellant could establish that the Tribunal went beyond jurisdiction in making its decision, the decision will be regarded as a privative clause decision and be final and conclusive (s 474 of the Act). (g) The concept of 'jurisdictional error' has been addressed in various cases (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Craig v South Australia (1995) 184 CLR 163). McHugh, Gummow and Hayne JJ in Yusuf (at [82]) referred with approval to a passage in Craig, which held that if an Administrative Tribunal: … falls into an error of which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach an mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error that will invalidate any order or decision of the Tribunal which reflects it. (h) The Federal Magistrate (with respect) applied the correct approach in relation to the grounds of review as put forward by the appellant. (i) His Honour correctly did not engage with the merits of the case, which was prominently what the grounds of review, both in the Federal Magistrates Court and the Federal Court, sought to agitate. The only other basis raised by the appellant was in relation to s 424A of the Act, which again was correctly applied (with respect) by the Federal Magistrate (with reference to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609). (j) This appeal heard by this Court, is an appeal pursuant to s 24(1)(d) and s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). It is not conducted as a hearing de novo but by way of rehearing (SZOCK v Minister for Immigration and Citizenship [2010] FCA 719 (at [30]-[31]) per Katzmann J; SZKJU v Minister for Immigration and Citizenship [2008] FCA 802 (at [14]) per Gordon J; Mineo v Etna (2009) 176 FCR 74 (at [7]-[9]) per Gordon J and the authorities therein referred, including MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 (at [14]) per Jessup J). As discussed by Allsop J (with whom Drummond and Mansfield JJ agreed) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (at [21]-[25]), the task of this Court is to consider whether the Federal Magistrate fell into error (MZWVH (at [10])). (k) If the Federal Magistrate did recount these background facts incorrectly, that is not a sufficient show that his Honour fell into error. (l) The Tribunal made comprehensive findings of fact which included the following: At [76]: … The Tribunal therefore finds that there is not a real chance that the applicant will suffer serious harm simply by reason of her being a Tamil-speaking Muslim. At [77]: The Tribunal does not accept that the applicant canvassed for the SLMC or any other political party during the 2008 Eastern Provincial Council elections. … At [79]: … the Tribunal is unable to accept that the applicant has been imputed with pro-LTTE political opinions as a result of such canvassing, or that she has been the subject of adverse attention by the government or paramilitaries by reason of such imputed opinion. In particular, the Tribunal does not accept that her father was abducted and interrogated in June 2010 or that threats were made against the applicant during the abduction. The Tribunal also does not accept that the applicant has been the subject of police attention while staying with her uncle in Colombo, or at any other time. At [81]: The Tribunal does not accept that the applicant was a member of the SLMC or otherwise active in politics. At [82]: … the Tribunal finds that the applicant would not be involved in politics if she was to return to Sri Lanka. At [83]: … The Tribunal is therefore satisfied that there is not a real chance that the applicant would suffer serious harm as a result of her father's political views. (m) The Federal Magistrate recognised that the Tribunal made these findings at [9]-[14]. It was then based on these findings that his Honour considered the grounds of review. The possible misstatement of the appellant's claims regarding the Karuna group was not then part of his Honour reasons, in considering the grounds of review. Therefore, no error of application or reasoning is demonstrated by his Honour. (n) Further, the Tribunal did not accept the appellant's political claims or that she was otherwise active in politics. Therefore, even if the Federal Magistrate did potentially state the appellant's political claim inaccurately, his Honour did correctly state the Tribunal's finding in relation to this claim and correctly applied those findings to the grounds of review. (o) On this basis, no error, sufficient to support the appeal is demonstrated. (p) In any event, the Federal Magistrate's decision is clearly correct, in that no jurisdictional error was committed by the Tribunal. It should be noted that the Tribunal correctly stated this claim by the appellant, both in repeating her statement and later, stating (at [41]) 'The applicant stated that when canvassing in the elections, she told voters not to cast their votes for the Karuna or Pillayan groups. …'. (q) No jurisdictional error has been demonstrated by the Tribunal on this basis and further no error has been demonstrated on the part of the Federal Magistrate, in not finding a jurisdictional error. (r) The Tribunal did not accept the appellant's claims and found that there was no real chance that the appellant would suffer persecution in Sri Lanka by reason of her actual or imputed political opinion. (s) The Federal Magistrate noted these findings and correctly (with respect) found that the Tribunal had not made any error going to its jurisdiction. (t) Even if his Honour did misstate an aspect of the appellant's claim, that would not constitute an error, relating to his Honour's consideration of the Tribunal's exercise of its jurisdiction. 44 In my view, the Minister's submissions are to be accepted. Taking into account the entirety of his Honour's reasons, it is clear that he understood the appellant's claims. I also accept that even if there was a minor slip in recounting the background facts in the course of an ex tempore decision, it is not enough to demonstrate error in the jurisdictional sense. As to the appellant belatedly pointing to factual mistakes made by the Delegate, the issue before this Court is whether the Federal Magistrates Court made a jurisdictional error. In relation to the appellant's reiterated complaint about the Tribunal not placing reliance on the letter from Minister Hakeem, the Federal Magistrate was correct in stating that it was for the Tribunal alone to assess and weigh up the evidence before it.

CONSIDERATION OF THE GROUNDS OF APPEAL 45 The grounds of appeal in the appellants' notice of appeal do not make any attempt to identify error said to have been committed by the Federal Magistrate. There is no appellate jurisdiction on this Court to entertain any appeal from a decision of the Tribunal. 46 Nevertheless, treating those grounds as being open for consideration, it is clear that the first two grounds simply seek impermissible merits review. There was ample material before the Tribunal which was capable of justifying its conclusion that it could not be satisfied to the requisite standard as to the claims made and for the reasons it gave. 47 There was no error revealed in the approach taken by the Tribunal. There was no obligation on the Tribunal simply to accept the claims of the appellant at face value. The weight to be attributed to the claims made and the evidence provided was a matter for the Tribunal to assess as part of its fact finding function. The conclusion that the appellant was not credible was a fact finding open to the Tribunal. 48 As to the third ground, this appears to pursue complaints made in ground 2 of the application in the Federal Magistrates Court. The appellant has not sought to demonstrate how the Federal Magistrate is said to have erred in declining to accept that complaint. To the extent that the Tribunal had reached adverse conclusions on her credit, it was not obliged to put those credibility doubts to her for further comment pursuant to s 422B of the Act. There was no error in relation to the third ground on the part of the Federal Magistrate.

CONCLUSION 49 No ground of appeal has succeeded. Therefore, the appeal must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.