BZADX v Minister for Immigration and Border Protection & Anor [2013] FCCA 2231

1. The applicant, a 26 year old man, is a citizen of Sri Lanka. In 1990 he left Sri Lanka as an infant with his family and relocated to India, where he and his family lived in a refugee camp from about 1990 until about 2010. He subsequently left India illegally to come to Australia, where he arrived on 11 May 2010 as an irregular maritime arrival. Upon arrival he applied for and was allowed to lodge a visa protection application. HIs visa application was assessed and rejected by a delegate of the Minister. The application was considered against both Refugee Convention obligations and under the complimentary protection provisions of s.36(2)(aa) Migration Act 1958 (Cth) because of his circumstances. Following rejection of his application he applied to the Tribunal for review of the delegate's decision to refuse the application. The Tribunal made its determination on 30 January 2013 and affirmed the delegate's decision not to grant him a Protection (Class XA) Visa. The applicant now seeks judicial review of that decision.

1. In his amended application, the applicant advanced five extremely broad and vague grounds for review. They are:
   • "1. The Member has an obligation under S420(1),(2) and S422B(3) of the Migration Act 1958 (Cth) to review the decision according to Substantial justice and merits of the case and in a way that is just and fair.
   • 2. The Member is in jurisdictional error in the consideration of the application by.
     • a) erred in law by failure to take relevant considerations in making the decision.
     • b) erred in law by taking irrelevant considerations in making the decision.
   • Particulars-
   • 3. The Member was in procedural error in failing to consider information supporting the fear of the applicant returning to Sri Lanka, leading to the adverse decision. The Member failed to apply the [sic] consider fairly and adequately the Application under the Complementary Protection criterion.
     • Particulars
     • a. That the applicant feared harm because of his Tamil race and the Sri Lankan authorities will suspect him of being a LTTE member and the harm feared amounts to persecution.
     • b. Failed to put the question to the applicant the circumstances why his family fled to India when he was very young.
     • c. No questions was pit [sic] to him of the persecution by the Sri Lankan Authorities of his family and other relatives that have been provided in his personal statement. The applicant was told not to provide any detailed history. Failure to do so constitutes legal error.
   • 4. The Member failed to consider that the applicant has no relatives or friends in Sri Lanka that he can go to and obtain assistance as he has never been to Sri Lanka after the age of 3 and has no possibility of resettling there.
   • 5. While the Tribunal member is not obliged to but could have made a little more effort in locating the Applicant to ensure that he has a fair opportunity of presenting his case."

1. In written submissions filed for the applicant, the grounds articulated in the amended application were condensed to an allegation that the respondent engaged in procedural error by not affording the applicant "fair and due process." In oral argument this was further refined by submission that the respondent relied upon out of date country information concerning the treatment of returned asylum seekers which was less favourable to the applicant rather than more contemporary country information which was more favourable. This failure was alleged to occasion procedural error in not affording the applicant fair and due process.
2. For the applicant it was contended that this gave rise to jurisdictional error by failure of the Tribunal to take into account relevant considerations in the making of the decision. In the written outline prepared for the applicant, the particulars of that allegation were summarised as follows:

1. The member failed to consider the information provided by the applicant that he and his family had been registered as Sri Lankan refugees and provided with a group identity card; 2. The member failed to consider that the applicant had no relatives or friends in Sri Lanka that he can go to for assistance as he has never been to Sri Lanka since the age of 3 and has no possibility of resettling there;

1. The member failed to take into consideration the report of the Home Office UK Border Agency Bulletin December 2012 and matters published in the Sri Lankan Guardian in January 2011;

1. The member has either not relied upon country information referred to in other decisions; or 2. Other Tribunal decisions evidence the availability of country information favourable to the applicant's case which was readily available without effort.
2. The applicant's counsel relied upon other decisions of the Tribunal in other cases to demonstrate and highlight the contended failure of the Tribunal in this instance, noting:
   • "The process must be consistent and the Members must arrive at the same conclusion on the events obtained from the country information."[1]
3. The applicant submitted that such a consistent approach had not been adopted in this instance but that by inference the Tribunal had selected the information which supported its "pre-determined decision." Accordingly, it was submitted that in doing so it did not use the country information to decide the outcome in a fair and just manner. That is there was a failure to consider relevant material.
4. Concerning that assertion:

1. The applicant contended that there was a failure to consider information that the applicant and his family were registered as Sri Lankan refugees and provided with a group identity card. It was not in issue that the applicant and his family were treated by the Tamil Nadu government as refugees between 1990 and 2010 that matter was considered by the Tribunal. However, no evidence was placed before the Tribunal as to the significance of a group identity card or what criteria the applicant needed to satisfy in order to obtain such a card, the latter point being a matter of particular relevance as India is not a party to the Refugee Convention. The respondent submitted that this matter was not a relevant consideration in any event. I accept that submission. The facts are as follows: India was not a party to the Refugee Convention; the criteria applied to determine the applicant as refugee in Tamil Nadu was not known on the evidence; the circumstances in Sri Lanka changed significantly since around the time the applicant left India (in 2010) and the civil war in Sri Lanka ended; and the Tribunal had to make its own decision based on the evidence before it as to whether or not the applicant was a refugee under the Refugee Convention. In summary, there appears to be no basis for this complaint. 2. The Tribunal is alleged not to have considered that the applicant has no relatives or friends in Sri Lanka that he can obtain assistance from. For the respondent it was submitted that there were three evident problems with that assertion. First, the relevant visa criterion concerned whether or not the applicant had a well-founded fear of persecution. Issues of resettlement in Sri Lanka are relevant to that criterion. Second, the applicant never suggested to the Tribunal that his having no family or friends in Sri Lanka would increase the likelihood of persecution. Accordingly, the applicant did not put the Tribunal on notice of an issue which he now says ought to have been considered. Third, there was no evidence before the Tribunal to support the assertion that a lack of family or friends in Sri Lanka would cause a person in the applicant's position to be more likely to suffer persecution or harm. I accept the submissions by the respondent on this point and for this reason that assertion must fail.

1. The third assertion by the applicant was that the Tribunal failed to take into consideration reports of the UK Home Office. For the respondent it was contended that the relevant report, being the Home Office UK Border Agency Bulletin December 2012, was not before the Tribunal. Accordingly, it could not be said to have failed to take such a document into consideration. Further, the respondent contended that there is no evidence that the reports referred to support the proposition that being a Tamil would give rise to a real risk of persecution or harm in Sri Lanka. That is, the reports themselves do not actually contain probative material that would support the assertion that the applicant had a well-founded fear of persecution. Finally, for the respondent it was contended that in the event that there was some kind of obligation on the Tribunal to obtain the December 2012 bulletin, the Tribunal's failure to do so and/or make inquiries could only amount to jurisdictional error where the inquiries concerned an "obvious inquiry about a critical fact, the existence of which could be easily ascertained."[2] The respondent asserted that in this instance there was no evidence before the Court to indicate what information could have been elicited if the documents referred to by the applicant had indeed been obtained. Further, it contended that there was no evidence that such a document would have been available and, given that the applicant did not request that the Tribunal obtain the documents, inquiries which the applicant suggests should have been made were not "obvious" inquiries.[3] I accept the respondent's submissions on this matter; accordingly, this assertion fails. In any event it is now settled that an assessment of country information is a factual matter for the Tribunal, and the Tribunal was not obliged to inquire into more recent country information than was before it.[4] Ultimately, the applicant seeks impermissible merits review on a point found against him before the Tribunal. He must fail on that ground alone.
2. At the hearing, the applicant's counsel did not abandon the matters formally contended for in the application. Accordingly, it is necessary for me to address them, noting however that they were not pressed.

1. The first ground relates to the inconsistent application of country information. Concerning this contention, the respondent submits the Tribunal was only obliged to consider the materials before it and that the documents referred to by the applicant were not placed before the Tribunal. It contended that the applicant advanced a view that the Tribunal was under some general obligation to search for (potentially) all relevant materials on the topic of whether Tamils in Sri Lanka face a real risk of persecution before reaching a conclusion on the matter.[5] It submitted that this was not the type of inquiry that the High Court referred to in its decision of Minister for Immigration and Citizenship v SZIAI and noted the observations of Sackville J in Yolla Majid Chemaly v Minister for Immigration & Multicultural Affairs,[6] where his Honour stated:

"It is important to appreciate, as Mr Bromwich accepted, that the RRT is not under a general obligation to search for all information that might bear on the issues in a case. As Wilcox J acknowledged in Sun, the duty of the Tribunal to make inquiries on its own initiative is a limited one. The obligation arises where the decision-maker is able to obtain important information on a central issue which he or she knows is readily available. The limited nature of the duty is reinforced by the observations made in the joint judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 (FC). Their Honours noted (at 561) that the circumstances in which the RRT "could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.""

1. It contended that there was no evidence that the Tribunal knew of the materials which the applicant claims were readily available, or further, that the inquiries which ought to have been made were obvious; that the materials could have been easily ascertained or obtained without any extra effort; and, that the materials were in fact far from obvious inquiries about a critical fact, "the existence of which could be easily ascertained."
2. In addition, the respondent contended that the vast body of material referred to by the applicant in its submissions:

1. Predates information and material relied upon by the Tribunal in this instance; 2. Was not before the Court and thus unable to be considered in context; and

1. Referred in any event to Tribunal decisions which were on par with the decision reached by the Tribunal in this case, that is, only persons who have an association with the LTTE or have expressed adverse political opinions concerning the Sri Lankan Government or authorities have a risk of real persecution or harm if they return to Sri Lanka.
2. I accept the respondent's submissions.

1. The applicant contended for two matters under this ground. The first was that the Tribunal's decision was predetermined; the applicant contended that the effect of this decision is that the Tribunal had a perceived bias. For the respondent it was submitted that it is rare that bias will be established based on the decision record alone.[7] In order to establish bias it is submitted that it needs to be shown that a "fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias" might reasonably apprehend that a decision maker may not have brought an impartial mind to the application.[8]
2. Adopting that test, there is no basis to sustain the applicant's complaints. There is no evidence to support the contention that the Tribunal's decision was predetermined or that it selectively relied upon information which assisted it to reject the applicant's visa.
3. In truth, the applicant's complaints in respect of this matter are directed to merits and weight. As was submitted by the respondent, the real complaint of the applicant concerns the merits of the Tribunal's decision or alternatively the weight which the Tribunal attributed to certain pieces of evidence before it. It is well settled that it is impermissible for the Court to review the merits of the Tribunal's decision[9] and that matters of weight are matters for the Tribunal only.[10]
4. It follows that this part of ground two must fail.
5. Secondly, the applicant complained that the decision was infected by jurisdictional error because the Tribunal took into account irrelevant considerations. On this point the applicant contended that the Tribunal erred in particularly taking into account the following irrelevant considerations:

1. By using of out-dated Home Office UK Border Agency 2012 material when more updated material was available; 2. Failing to consider the information that the applicant had left Sri Lanka with his family when he was very young, which meant he would be "at the mercy of the Sri Lankan authorities to settle and who after investigation of his family will suspect him as a relative of LTTE supporters, arrest, detain and torture him (even if he is not)."[11]

1. The member "failed to put the question as to the circumstances why his family fled Sri Lanka," which it is contended would have assisted "the Member in making a more favourable decision."[12]
2. I have addressed this matter in part above. For the respondent it was contended that there was no submission or material put before the Tribunal that the bulletin it was relying upon (October 2012) was out-dated. As it contended in respect of this second point, and I accept, the Tribunal was only obliged to consider the applicant's case on the materials before it and not obliged to make inquiries except in respect of matters which were obvious inquiries about critical facts, the existence of which could be easily ascertained. Although it may be correct that more updated material was available, the fact remains that there is no evidence to demonstrate that even if regard had been had to the updated material there was anything about the material which would have resulted in a different decision. This ground fails.

1. The third ground contended for by the applicant was that the Tribunal failed to apply and consider fairly and adequately the application under the complimentary protection criterion. The applicant's complaint was that the member had not properly considered the complimentary protection provisions satisfactorily and with due process, and did not apply the "real chance" test. It was submitted that the applicant in this instance had a genuine reason of fear of return to Sri Lanka and that there was a "real chance" that he would be arrested, detained and tortured if he were so returned. It was contended that the Tribunal failed to give adequate consideration to this factor. In its decision at paragraph 14, the Tribunal posited the question on this point by considering whether "there must be a sufficient foundation for that fear."[13] Respectfully, that is just another way of saying that the Tribunal must consider if there is a 'real chance.' At paragraph 44 the Tribunal concluded:
   • "... However, in the present matter, the Tribunal has formed the view that the applicant does not have the profile of a person at risk of harm by the government, the authorities, or paramilitaries in Sri Lanka. The Tribunal finds that the applicant was not involved in any activity which will attract the adverse interest of the authorities in Sri Lanka and it finds that his fear in this regard is not well-founded."
2. In my view the Tribunal did consider and apply the 'real chance' test, but determined that matter against the applicant. That was a matter of fact determined by the Tribunal and open upon the material to be determined by it in the manner in which it did. I accept, as the respondent contended, that the Tribunal found no evidence that the Sri Lankan authorities would consider the applicant to be associated with the LTTE, particularly so where there was no evidence to demonstrate that he had ever had any contact or involvement with it or engaged in any political activism. The onus was upon the applicant to present evidence and make any submissions to the Tribunal which he thought relevant. It was not for the Tribunal to put any particular questions to the applicant, nor did the Tribunal have any obligation to make the applicant's case for him. In any event, there is nothing to suggest that any of the answers the applicant could have given to the questions he complains were not put to him would be of any consequence. Further, there was no evidence to indicate that he was told "not to provide any detailed history." This ground also fails.

1. The fourth ground advanced was that the member failed to consider the applicant's absence of relatives or friends in Sri Lanka. As indicated earlier, this matter is not relevant to determining whether or not an applicant has a Convention reason, and accordingly this ground fails.

1. The applicant contends that the Tribunal failed to make more effort to locate the applicant. The applicant appeared before the Tribunal. In the circumstances it is difficult to understand the basis for this complaint. It too fails.

1. The applicant contends five grounds upon which it submits the Tribunal occasioned in jurisdictional error. Of the five, the most substantial concerns a complaint by the applicant that the Tribunal failed to take into consideration more recent country information than that which was referred to by it.
2. The applicant has failed on each of the five grounds and, in particular, has failed to make good on its assertion that jurisdictional error was occasioned by the Tribunal's failure to consider other country information. The application is dismissed.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Burnett

[1] Applicant's Outline of Argument filed 2 September 2013 at page 7.

[2] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [26].

[3] Hoang v Minister for Immigration [2013] FCCA 89 at [65]-[68].

[4] SZJRK v Minister for Immigration and Citizenship [2008] FCA 154 at [7].

[5] Respondent's submissions at paragraph 99(b).

[6] Yolla Majid Chemaly v Minister for Immigration & Multicultural Affairs [1998] FCA 1403.

[7] SZRJY v Minister for Immigration (No 2) [2012] FMCA 756 at [49].

[8] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [28].

[9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

[10] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33].

[11] Although this contention appears to address a failure to consider relevant information, it is addressed in the applicant's ground 2b submissions.

[12] This submission is couched in the context of a consideration of irrelevant information, rather than a more appropriate basis for claim such as making an obvious inquiry about a critical fact, the existence of which could be easily ascertained.

[13] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Dawson J at 396.