MZAJK v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The appellant is a citizen of Sri Lanka. He left Sri Lanka on 1 May 2012, travelling to Australia by boat. He arrived at the Australian external territory of Christmas Island on 16 May 2012. The following month, he was interviewed by an officer of the department then known as the Department of Immigration and Citizenship. On 5 August 2012, with the assistance of a migration agent, the appellant lodged an application for that class of visa under the Migration Act 1958 (Cth) (the Act) known as a Protection (Class XA) Visa (protection visa). A further interview with an officer of the department followed. On 4 October 2012, a delegate of the first respondent, who holds the office now entitled Minister for Immigration and Border Protection (Minister), decided not to grant to the appellant a protection visa. 2 The appellant then sought the review on the merits of the Minister's delegate's decision by the Refugee Review Tribunal (Tribunal). On 11 January 2013, that Tribunal decided to affirm the Minister's delegate's decision. The appellant then applied to the Federal Circuit Court of Australia (Federal Circuit Court) for a judicial review of the Tribunal's decision. In the result the appellant's case was remitted to the Tribunal, by consent, for hearing again. That was because the Minister conceded that the first Tribunal decision was affected by a jurisdictional error. The conceded error was that the Tribunal had failed to consider the appellant's then status as a minor when determining whether he was owed complementary protection. 3 The merits of the appellant's review application were then considered afresh by a differently constituted Tribunal. The Tribunal conducted a hearing on 19 and also 24 June 2014. On 30 June 2014, the Tribunal again decided to affirm the Minister's delegate's decision not to grant the appellant a protection visa. The appellant again then applied to the Federal Circuit Court for the judicial review of the Tribunal's decision. On 19 May 2015, the Federal Circuit Court, (Hartnett FCJ), dismissed the judicial review application. It is from that second Federal Court judgment that the appellant now appeals to this Court. 4 There is only one ground of appeal identified in the notice of appeal. That ground, which appears in a handwritten annotation to page 4 of the notice of appeal, is that the conclusion of the Tribunal that the appellant was not a person to whom Australia had protection obligations was not logical or rational. Even though, in the body of the notice of appeal, there is reference to "See page 4", where the ground just mentioned appears, I should, if only out of an abundance of caution, highlight another feature of the notice of appeal. That other feature is that, in the orders sought, not in the grounds of appeal portion of the notice of appeal, there is reference to error on the basis "By reason of the grounds of the application and further amended". There is also reference in the orders sought to a declaration that the appellant was denied "procedural fairness". 5 The appeal ground of absence of logical or rational reasoning was not a ground of review before the Federal Circuit Court. That said, and as was correctly and fairly highlighted on behalf of the Minister, the learned primary judge nonetheless observed, at paragraph 10 of her reasons for judgment; that, "The findings of the Tribunal were neither unreasonable nor irrational". So the issue sought to be raised in the expressly identified ground of appeal cannot be said to be one which was not considered by the primary judge. Even so, I am mindful of authority, not limited to appeals in migration cases, which counsels against converting an appeal into an original jurisdiction hearing. Given though, that the issue was considered by the primary judge, I consider that the interests of justice in this case are best served by considering that ground of appeal. Further, if only out of an abundance of caution, I shall make some reference as well to issues which are mentioned in the orders sought in the appeal notice, even though they are not expressly identified as grounds of appeal. 6 It is first necessary to say something, if only in a summary way, of the basis of the appellant's claim for a protection visa. The appellant's claim for a protection visa was made against the background of a long running civil war in Sri Lanka, and its aftermath in that country. The appellant claimed to fear persecution based on his ethnicity and his family's suspected association with the LTTE. It was the LTTE that came, ultimately, to be defeated in the civil war. The appellant claimed that his family had been interrogated and threatened by the Sri Lankan army, and also by the Civil Investigations Department (CID). His claim, based on ethnicity and family association, was one of fearing that he would be tortured and killed in the event of his being returned to Sri Lanka. A separate basis of his claimed fear of persecution was that he would be persecuted by the authorities in Sri Lanka by virtue of his being a member of a particular social group, namely failed asylum seekers returned to Sri Lanka after seeking asylum in a Western country such as Australia. 7 As I have mentioned, there was also, given the appellant's age when he first came to Australia, an issue arising from his then status as a person under the age of 18, and therefore a minor. 8 Turning first to the identified ground of appeal, namely illogicality or irrationality, there is no doubt that this, if proved, amounts to a jurisdictional error. If nothing else, illogicality or irrationality can be a type of unreasonableness: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72]. 9 Sometimes, as has been observed in earlier authority, to describe a decision as irrational or illogical can be nothing more than an emphatic way of expressing disagreement with that decision. The appellant, I am quite sure genuinely, emphatically disagrees with the decision to which the second Tribunal came concerning his protection visa claim. That, though, is not illogicality or irrationality of the kind that amounts to a jurisdictional error. 10 In this case, the reasons of the Tribunal disclose a very close consideration of the bases of the claim for a visa. The Tribunal observed, at paragraph 105, that: Despite his young age, of 18 years, the applicant was a responsive and thoughtful witness who understood questions well and had relevant and prompt responses. The Tribunal considered that the appellant had, "maintained his claims consistently". For reasons which are neither irrational nor illogical, but rather based on information before the Tribunal concerning the position in Sri Lanka, the Tribunal concluded, at paragraph 111: I find that the applicant's father, and all members of the family, were not of particular interest to authorities at all times after his brother's short detention in 2010. The Tribunal further concluded, at paragraph 111: By 2012, the implication of the UNHCR's position was that Tamils generally were not in need of international protection, and by 2013 the UK Tribunal's guidance, which I find persuasive, was that the government was concerned with present and not historical links to, or efforts to support, Tamil separatism to revive the internal conflict, or destabilise the unitary State. 11 It was for these reasons that the Tribunal rejected the appellant's claim that he was specifically sought by the CID, or other authorities, four times, or any number of times, in the post-war period, or that his name, or the names of any of his family members, were or are on a watch list or stop list of the authorities. The Tribunal concluded that the appellant was a young Tamil man who was otherwise unremarkable, in terms of having any profile. The Tribunal found, on the basis of country information before it, that the appellant's contention that he had a risk profile that would be imputed to him, on any of the bases he put, was not made out. 12 The Tribunal also concluded that the Sri Lankan government was well aware of departures overseas, and that country information did not support the proposition that by travelling and living overseas, and claiming asylum, whether in a Western country or otherwise, would cause the government to pursue a course that would lead him to suffering serious or significant harm. The Tribunal also considered and rejected complementary protection as a basis for the granting of a protection visa. The Tribunal concluded that there were no substantial grounds for believing that, as a necessary consequence of being removed from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm, in any one of the five forms defined in the Act. 13 It is a feature of the procedure adopted by the Tribunal that the Tribunal chose to split the hearing, and in the interval provide to the appellant country information before it. In providing information of a generic nature, the Tribunal went further than s 424A of the Act strictly required. The Tribunal is hardly to be criticised for adopting this procedure. Indeed, given the importance of general information concerning the position in Sri Lanka in this case, it was a very fair procedure for the Tribunal to follow. 14 It seems to me that the result in the Tribunal turned not so much on the rejection of the appellant's history as to earlier experience in Sri Lanka, but rather upon the Tribunal's assessment of the present situation there. That assessment was reasonably open for the Tribunal to make on the basis of the information it had before it. Given that, it is very important that this Court, as did the Federal Circuit Court, demonstrate a principled restraint in the exercise of judicial power. By that I mean that in this type of case it is no part of the jurisdiction of the Federal Circuit Court, on judicial review, nor of this Court on appeal, to revisit decisions on matters of factual merit. Here, the Tribunal has provided readily comprehensible reasons, based on material before the Tribunal, to reach conclusions reasonably open. 15 It necessarily follows from this that the observation made by the learned Federal Circuit Court judge, that the findings were neither unreasonable nor irrational, was correct. In turn this means that the identified ground of appeal must fail. 16 The notice of appeal could also be read as rehearsing the grounds of review before the Federal Circuit Court, and contending that that court was in error in not upholding those grounds. As to these, firstly, there is no merit in the contention that the Federal Circuit Court judge was in error in holding that there had been no denial of procedural fairness. As I have already observed, the Tribunal did more in this case than the Act required, in terms of affording the appellant an opportunity to be heard. 17 Neither is there any merit in the contention that the Tribunal failed properly to consider all of the appellant's claims for a protection visa. The second Tribunal's reasons show a very close engagement indeed with each aspect of the claim. There is also no merit in the proposition that the Tribunal did not give the appellant an opportunity to comment on issues in dispute. Insofar as the process adopted by the Tribunal is evidenced by the Tribunal's reasons, the reverse is proved. In other words, the reasons disclose that the Tribunal went to some length to put particular propositions to the appellant, and also, as I have said, to give him a very generous opportunity to comment upon generic country information concerning Sri Lanka. 18 The Tribunal's reasons also do not make out any basis for concluding that the Tribunal applied the wrong legal test in deciding whether the Tribunal was satisfied or not satisfied that the appellant was a person to whom Australia owed protection obligations, in terms of s 36 of the Act. 19 Insofar as it was an issue before the Federal Circuit Court that the Tribunal had applied to the wrong test under s 91R (2)(a) of the Act, as interpreted by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN), the difficulty with that contention is that his Honour's judgment has been twice disapproved by the Full Court in SZTEQ v Minister for Immigration and Border Protection (2015) 145 ALD 577 and then in WZAPN itself, by the High Court: see Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22. 20 In short then, the Federal Circuit Court reached the correct conclusion in respect of the grounds of review before that court. It follows from this that the appeal must be dismissed. 21 There are two other matters which I should mention. 22 First, it is a matter of necessary formality, flowing from legislative change, that the name of the second respondent should be amended from Refugee Review Tribunal to Administrative Appeals Tribunal, reflecting the present position as a result of the Refugee Review Tribunal's function being subsumed into that of the Administrative Appeals Tribunal. 23 Second, it should be recorded that the appellant sought today an adjournment of the hearing of the appeal. In support of that application he came to produce and tender, and I marked as an exhibit, a letter of 4 August 2015, addressed, "To whom it may concern", by a refugee support organisation known as "RISE". To that was attached another letter addressed, "To whom it may concern", dated 15 April 2015, from that same organisation. The letter made reference to difficulties in securing of volunteer legal representation. For reasons which I gave orally earlier today, I refused, and indeed refused to reconsider, the adjournment application. That was because, even though I am very conscious of the difficulties which a person whose first language is not English, and who did not have legal qualifications, has, this hearing had been fixed for some time. The notice of hearing was sent on 29 June 2015. The Federal Circuit Court's judgment was delivered before then. Thus, from the date of the Federal Circuit Court's judgment to today, more than two months had elapsed. 24 This, in my view, gave sufficient time, even allowing for the appellant's difficulties, for him to take such advice as he was able to procure in relation to the merits of the appeal and representation. I also considered it necessary to take into account the demands of other litigants for the Court's judicial resources. I also considered that it was important that organisations seeking to assist would be refugees take into account those other demands. In the result then, the appeal has been heard and determined today with the outcome being as indicated. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.