Ack17 v Minister for Immigration
[2019] FCCA 811
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACK17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 811 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – Appeal of Immigration Assessment Authority decision – procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | ACK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 31 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 11 February 2019 |
| Date of Last Submission: | 11 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Ms Psihogios |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 31 of 2017
| ACK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 December 2016. That decision affirmed a decision of the delegate not to grant the applicant a protection visa.
The Applicant is a Nigerian national aged 44. He arrived in Australia with a temporary subclass 600 Visitor (business) visa on 30 May 2014 to attend a Rotary International Convention in Sydney (‘Sydney Conference’).
On 24 June 2014 the Applicant applied for a protection visa on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. On 20 October 2014 the delegate refused to grant the visa.
The Applicant applied to the Administrative Appeals Tribunal (then known as the Refugee Review Tribunal) for review of that decision on 13 November 2014. The Applicant attended a hearing in August 2016 to give evidence and present arguments. The Tribunal put to the Applicant concerns about his credibility and the Applicant requested time to submit further material. The Tribunal agreed to delay its decision for the Applicant to provide further evidence in support of his claims. The Applicant filed post-hearing submissions. On 19 December 2016 the Tribunal affirmed the delegate’s decision refusing the application.
The Applicant lodged an application for judicial review of the Tribunal’s decision on 9 January 2017. The matter came before this Court for hearing on 2 November 2018, at which the Applicant was self-represented. That application contained the one ground: ‘The AAT decision had jurisdictional error’. It became apparent throughout the Applicant’s submissions that he was agitating whether there had been any bias on behalf of the Tribunal member.
The matter was adjourned at the court’s motion for the Minister to provide the Applicant with a transcript and audio recording of the Tribunal, and a referral certificate was issued for the assistance of a legal representative to assist the Applicant. The applicant filed an Amended Application and submissions on 19 October 2018.
Applicant’s Facts
The applicant claims are detailed in the Tribunal’s decision at [12] to [31] of the Tribunal’s decision.
The Applicant’s claims he is a Christian from Port Harcourt in Rivers State, Nigeria. He has a wife and children who remain living there.
The Applicant claims that shortly before leaving Nigeria for the Sydney Conference, he was threatened by members of his former political party, the People’s Democratic Party (‘PDP’), of which he was a member between early 2013 and February 2014.
The Applicant claims to have left the PDP and joined its main rival party, the All Progressives Congress (‘APC’) because he was dissatisfied with the PDP due to the PDP’s internal problems. He alleges the PDP were unhappy with this move because of concerns the Applicant would inform the APC of internal discord within the PDP, or that senior members of the PDP are homosexuals.
The Applicant claims that on 1 March 2014 members of the PDP hired some ‘thugs’ to attack him with guns, knives and cutlasses, making an attempt on his life. The Applicant claims he managed to escape but sustained injuries during the attack, which required hospital treatment. At a later date the assailants visited him again, but again the Applicant escaped. In the face of these events the Applicant says he became increasingly frightened of the killings and kidnappings taking place in Nigeria at that time.
It was in the context of these events the Applicant says he travelled to Sydney. The Applicant claims that after he left Nigeria, he learned through newspaper articles that his assailants had attacked his neighbourhood looking for him, during which they killed some of his neighbours. He claims his wife and children went into hiding. The Applicant said that he has declined appeals from people calling and asking him to re-join the PDP, and says he would have nowhere to hide from the members if he were to return to Nigeria.
Tribunal’s Findings
The Tribunal did not accept the Applicant met the criteria for protection under the complementary protection regime, emphasising significant credibility concerns with the Applicant’s claims.
The Tribunal was not satisfied that the Applicant was a witness of truth, due to inconsistences, such as little knowledge of politics in Nigeria; conflicting explanations for a shortened trip to Dubai; contradictory evidence regarding where he and his family lived after he was allegedly attacked; evidence regarding police reports and some general claims.
The Tribunal gave no weight to the Applicant’s evidence that he failed to communicate details about the APC due to trauma.
The Tribunal gave little regard to affidavits submitted by the Applicant that contradicted his claims regarding the number of times he’d been attacked.
The Tribunal doubted the veracity of newspaper documents produced by the Applicant on the grounds document fraud in Nigeria was prevalent.
The Tribunal did not accept the Applicant was a politician or had any political involvement in Nigeria, had a political profile, or that he faced harm from cults in relation to desertion of political parties. It also did not accept that he went to Dubai to escape harm, or that anyone threatened to tell the police he was a homosexual.
The Tribunal had ‘serious concerns about the applicant’s credibility and the veracity of his claims (and his inconsistent, changing and unlikely evidence’: see [52]. The Tribunal dealt with these issues in detail as outlined below.
At [53] the Tribunal was concerned about the lack of political knowledge of the applicant at the delegate’s interview. The Tribunal put to the applicant’s its concerns and the applicant explained he was traumatised. The Tribunal found:
56. …On the evidence before it, the Tribunal is not prepared to accept that the applicant was traumatised at the delegate’s interview. The Tribunal considers that the applicant’s evidence to the delegate indicates that he did not change from one political party to another as claimed, and undermines his credibility.
Ground of application
The amended grounds of application were framed as:
1. The Tribunal failed to determine the review application according to law.
Particulars
(a) The Tribunal denied the Applicant procedural fairness by not giving him the opportunity to give evidence and present arguments as required by section 425(1) of the Migration Act 1958 (Cth) ("the Act") and the Applicant refers to the transcript appended to his further affidavit filed herein.
(b) The transcript of the Tribunal hearing ("the hearing transcript - HT") demonstrates that the Tribunal continually interrupted the Applicant while he was attempting to respond to the Tribunal's questions which resulted in the Tribunal confusing itself and the Applicant about the details of the Applicant's claims, such confusion resulting in the Tribunal constructively failing to exercise its jurisdiction to determine whether Australian owed protection obligations to the Applicant.
2. The Tribunal approached the hearing with a mind-set that was not amenable to change regardless of the Applicant's evidence.
It is convenient to deal with these grounds together.
The applicant argues that he was not provided with a reasonable opportunity to be heard as the tribunal member did not allow the applicant to complete his answers to the tribunal member’s questions.
In this respect, the applicant refers to a large number of passages that can be read in the transcript. It was also pressed that I should listen carefully to the recording of the interview, which was provided in electronic format. Prior to preparing this judgment, I have listened to this recording in its entirety.
At the hearing, the tribunal member is very clear and precise in her statements and questions. In the background, one hears throughout the clacking of a keyboard, presumably the tribunal member making electronic notes on her computer. The process of making notes using a keyboard, to some extent, set the pace for the interactions at the hearing. From the outset, the tribunal member was careful to keep a strict control over the hearing and the answers given.
Whilst her manner of speech was quite direct, I’m not persuaded that the tone adopted in the interview demonstrates any reasonable basis for a claim for apprehended bias.
In some ways, listening to the electronic recording is helpful, for example, at T24.28, the applicant asks to have some water, and the transcript does not record that which can be heard on the recording, namely, the sound of pouring water, some small pause and an acknowledgement by each of the other using the word “okay” before the questions continue at line 31.
It is appropriate that I deal with the various parts of the transcript to which argument was addressed.
a)At T3.29 of the transcript the member says that she does not have a copy of the delegate’s decision record. At best, this demonstrates that the tribunal member’s frustration that he applicant had not provided a copy of the delegate’s decision and she had not yet had the opportunity of finding and reading the delegate’s decision on the department’s file prior to the interview. In any event, the tribunal hearing is not bound by the findings of the delegate
b)It is complained that the tribunal member interrupted the applicant at the top of page 10 of the transcript, whereas it is clear that the applicant had referred to a police report and that the tribunal member wished the applicant to pause until she had located the copy of the report so as to properly understand the documents that were before her.
c)At page 17 of the transcript, there is an exchange between the member and the applicant with respect to who completed his application form, whether he retained a duplicate and whether he had, in fact, read the form before signing it. Page 17.8 gives an indication of some of the types of answers the applicant gave. At that point in the page, after being asked whether or not he received a copy of the form that was submitted on his behalf, he said, “A copy that was submitted on my behalf, like a duplicate, a photocopy?” to which the member replied “a photocopy”, and only then did he say “no”.
d)At T17.26, the applicant says that he didn’t check the information in the form, then says, “Firstly, let me answer the question correctly”. It is difficult to know what he is referring to, and, at this point, the tribunal member offers to show him a copy of the form with the signature on the front, no doubt to ensure that she and the applicant are speaking about the same form and that he understands which form it is. She then goes on to ask him what is wrong with the form, and he explained that he was traumatised at the time, ultimately saying that “I think a lot” is wrong with the form (see T18.7). The tribunal member then goes on to identify the errors that are said to be in the form from T18.15, the first piece of information being that a company name in the form was incorrect.
e)At T24.10, the applicant is asked by the member to identify the next error or mistake in the form. Given the earlier evidence at page 18 of the transcript that there were “a lot” of errors in the form, it is not surprising that the member would wish to carefully move through the form and identify the errors that are said to be contained within it.
f)Transcript on page 27 gives some indication of the difficulties confronting the tribunal member when attempting to clarify the precise circumstances of the applicant where the following exchange took place:
MS CODY: Two forms, yes, your protection visa application form and your personal particulars. So you're saying both those forms that you signed are incorrect.
MR OMOREGBY: They're incorrect.
MS CODY: Sorry?
MR OMOREGBY: They're incorrect.
MS CODY: Now you said something about your overseas' form as well, what's that? Tell me, what address did you put in - are you talking about your visa application to come here?
MR OMOREGBY: the visa application to come here I put in Saffeck Street, 2 Saffeck Street before - when I lived there, I moved to - I can't address it, there's no way I can write to someone or maybe describe it for someone, "this is where I live" because of the incident that happened so I was always like in hiding. If the place I moved to, if it were - is specific address like No. So so place, if it's a renting address, I would have put it in writing and there would have been documents or there could be any document that related to that address or proof of that address but there isn't - it was like a new house that somebody lived there, it's a very bad route, to assess the route is usually - - -
MS CODY: So you just moved into a random house?
MR OMOREGBY: Yes.
MS CODY: Someone's random house?
MR OMOREGBY: Yes, it's a new- - -
MS CODY: Who gave you permission to live there?
MR OMOREGBY: The owner, the owner.
MS CODY: Who's the owner?
MR OMOREGBY: The owner is in Qatar but he gave it- gave to somebody to - it's not to (indistinct) it wasn't (indistinct) that was there but some – some people, I met some people there to so they give her the place.
MS CODY: Sorry?
MR OMOREGBY: They give her the place like a rent.
MS CODY: Right, you rented the place from someone?
MR OMOREGBY: Yes, from someone.
MS CODY: So wh.o did you give the money to when you were renting?
MR OMOREGBY: The person in-charge.
MS CODY: Who's that? Someone in Nigeria?
MR OMOREGBY: Someone in Nigeria, I can't remember, it's a long time. Someone in Nigeria.
MS CODY: So why couldn't you give that person's address as your address then? You gave that person the money.
MR OMOREGBY: Yes.
MS CODY: Why couldn't you use their address? Why couldn't you say, "this place doesn't have an address, can I use your place as an address?" Why didn't you say that?
MR OMOREGBY: Okay, the place is- this place he lived is very far, come from - there's a (indistinct) town, they call it town, that's the name – the popular name they can it but I don't know the reason why they call it town, 30 that's where he lived because that was the first place that (indistinct)
MS CODY: Sorry, the reason why you couldn't- I'd just like you to answer the question please. I'm asking why you couldn't give that person - you saw this person, you gave them money, right?
MR OMOREGBY: Mm.
Whilst I accept the tribunal member, no doubt in frustration, moves away from the core purpose of the question, namely, identifying the applicant’s address on his application form, his degree of obfuscation would have been particularly frustrating. It became apparent that he was living in a place known as either Pipeline or Umboku, but did not list this as a simple form of address, but, rather, gave a previous address which he said he was no longer living at.
At page 35, the member cut short the applicant’s attempts to provide an explanation to contextualise an answer and says that he would either be asked at the appropriate time by the member or have an opportunity at the end of the hearing (see transcript 35.18).
At transcript 37.15, the following exchange took place with respect to an injury that the applicant was hospitalised for:
MR OMOREGBY: It was an internal injury from the spine and back and some bruises from the legs and hands - yes.
MS CODY: But you were good enough to be released from hospital after one night?
MR OMOREGBY: Yes, I was going there for treatment every now – and every day morning, evening.
MS CODY: I didn't ask that.
MR OMOREGBY: Okay, sorry.
MS CODY: So you were released from hospital the next day, all right.
MROMOREGBY: Yes.
MSCODY: So did anything else happen to you?
MR OMOREGBY: No.
MS CODY: Just this one incident?
MR OMOREGBY: Attempted- the second one was an attempt but - - -
MS CODY: Sorry?
MR OMOREGBY: The second one was an attempt, they were coming to my house.
MS CODY: So there was a second incident - - -
MR OMOREGBY: I was not there. The attack - the second one was an attempt to attack me - - -
MS CODY: Sorry, so you first of all- when I said did anything else happen to you, you said no.
MR OMOREGBY: No.
MS CODY: Then you said, no, just this one incident, and now you're saying there was an attempt to attack you, yes.
g)Whilst I accept the tribunal member, no doubt in frustration, moves away from the core purpose of the question (identifying the applicant’s address on his application form), the degree of obfuscation by the applicant would have been particularly frustrating. It became apparent that he was living in a place known as either Pipeline or Umboku, but he did not list this as a simple form of address, but, rather, gave a previous address which he said he was no longer living at.
h)At page 35, the member cut short the applicant’s attempts to provide an explanation to contextualise an answer and says that he would either be asked at the appropriate time by the member or have an opportunity at the end of the hearing (see T35.18).
i)At T37.15, the following exchange took place with respect to an injury for which the applicant was hospitalised
MR OMOREGBY: It was an internal injury from the spine and back and some bruises from the legs and hands - yes.
MS CODY: But you were good enough to be released from hospital after one night?
MR OMOREGBY: Yes, I was going there for treatment every now - and every day morning, evening.
MS CODY: I didn't ask that.
MR OMOREGBY: Okay, sorry.
MS CODY: So you were released from hospital the next day, all right.
MROMOREGBY: Yes.
MS CODY: So did anything else happen to you?
MR OMOREGBY: No.
MS CODY: Just this one incident?
MR OMOREGBY: Attempted-the second one was an attempt but -
MS CODY: Sorry?
MR OMOREGBY: The second one was an attempt, they were coming to my house.
MS CODY: So there was a second incident - - -
MR OMOREGBY: I was not there. The attack-the second one was an attempt to attack me - - -
MS CODY: Sorry, so you first of all - when I said did anything else happen to you, you said no.
MR OMOREGBY: No.
MS CODY: Then you said, no, just this one incident, and now you're saying there was an attempt to attack you, yes.
MR OMOREGBY: Just (indistinct)
j)At page 40 and following, it is clear the tribunal member is finding part of the version she understands the applicant to have given as being inconsistent. This culminates at T44.23 where she puts to the applicant that she’s concerned he’s changing his story, which in light of the foregoing appears to be a fair comment. He gives a lengthy explanation at transcript 43.18 where he says
MR OMOREGBY: I'm sound, I don't want to lie, I can't lie. I said I moved out of the house from there, when I was coming, that's a few days later, when I said I was coming home, I didn't say - I don't mean I am going to Saffeck, the place I moved to, which is pipeline, a new home where I lied, that was where I was going when I received a call they were coming. Because it's still in the vicinity, in the Ruboku community that is the reason why I don't want to go there, I don't want to go to Ruboku, (indistinct) pipeline or anywhere, any place in Ruboku, that is the reason why I didn't go home.
k)At pages 59 to 60, the tribunal member is asking the applicant about his knowledge of the political party and the colours that it uses, offering him an opportunity to comment or to seek further time: see T59.25. The applicant, at the end of T59 moves back to the subject of his house’s location, and is interrupted by the tribunal member asking if this is still relevant to the political party issue (see T60.5). He then goes on to say
MR OMOREGBY: I'm just telling you, I'm already traumatised and I don't know what I was doing, I was just there. I was just there.
MS CODY:. I understand what you're saying, yes.
MR OMOREGBY: (indistinct) I almost pass out when - the second time when he said, "Yes, after you departed from Nigeria you went to South Africa, according to your application." I don't understand how those information came about. I didn't go to South Africa. I was already - I was confused, I didn't know what to say. I was just blabbing, I was just- I was already (indistinct) the first time, when I came I couldn't I couldn't say anything, I was just like that, I was looking, I said "this is stupid or maybe I'm giving the wrong information or maybe I lie before," I hate to lie. I don't - I can't lie about anything. I was brought up in homely and - - -
MS CODY: (indistinct).
MR OMOREGBY: I was homely, that is a homely (indistinct) very (indistinct). That was the way I was brought up. I have never been like a victim of lie. 1 don't how to - it's really painful especially when maybe somebody's putting it to you, "You said this" when you know that you didn't say that. So the second one I almost pass out. I said, "This is me my route pass, I can remember I see on my ticket that I came with." (indistinct) I don't remember, I can't provide that.
MS CODY: I'm not understanding what you're talking about now. You have your ticket. What does that have to do - - -
MR OMOREGBY: It was like - it was like information that is there, they are not true. First of - - -
MS CODY: Sorry, what does your ticket have to do - sorry, I didn't understand what you just said bout ticket. What does your ticket mean?
It appears clear that the tribunal did have some difficulty in keeping the applicant focused upon issues as she methodically moved through his version of events.
l)At T64, the applicant appears to be telling the tribunal member that he was concerned that cults (another term he uses for the political party he refers to: see Court Book 27 to 29) may have reported him to authorities as being an alleged homosexual which is illegal in Nigeria. The tribunal members clarifies at T64.24 by asking whether he is suggesting that he is gay, to which he responds that he is not, saying ‘I said they want me to be like that and …’. The tribunal member interjects to clarify that she understands him to be saying that the people wanted him to be gay to which he says yes. She then asks the question squarely again no doubt to ensure he understands the question, at which point he reverts back to the version that he gave initially in the hearing that he was fearful they would report him to the police to condemn him. The tribunal member then asks him to listen to her and squarely asks the question again to which he says that some of the members wanted him to be a homosexual. She then puts to him that that’s not what he had said on his application form (T65.5). By the end of page 66 of the transcript, the tribunal member has clarified that he is alleging that other members were threatening to report him to the police and accuse him of being homosexual. The tribunal member goes on to ask why that wasn’t said earlier to which he said “Yes. I couldn’t remember” (see T67.4).
Ultimately, at T-71.09, the tribunal member agrees to provide the applicant with a further week to lodge additional material, if he wishes to do so. The applicant took up the opportunity of lodging additional material offered at the end of the hearing, which appears at court book 177.
The applicant also relies upon the findings of the tribunal member at paragraph 99 of the decision where she said:
The Tribunal put to the applicant at hearing, as noted above, that it found it difficult to accept that: he was a politician• or a businessman or that the PDP and their cults had actively targeted him because he stopped providing cars for rallies. Having regard to the country evidence about fraudulent documents (the applicant admitted that there is corruption in his country), and noting in particular in relation, to .journalism; that several sources set out in the UK Country of Origin report on Nigeria refer to the practice of journalists accepting money to publish stories as well ·as the poor quality of reporting and journalistic responsibility,· the Tribunal is not prepared to accept that this is a genuine article relating to the applicant.
The applicant argued that this shows that the tribunal member had taken a view against the applicant and simply rejected his evidence from a newspaper article. It appears that this was open to the tribunal member having regard to the nature of the document presented. The newspaper report was said to be reporting comments by “the party image maker” for the APC political party, who told the reporter that a number of persons including the applicant had fled the country and found it difficult to return because it was said their lives were seriously under threat. Whilst different decision-makers may reach different conclusions about that article, it appears to be open to the tribunal member to have reached the conclusion that she did.
The tribunal member also dismissed various other documents as a result of country information about high levels of document fraud in Nigeria. The fact there is generally document fraud in a country does not mean that all documents from the country should automatically be rejected. However, it does require the tribunal members to consider the nature of the documents in these circumstances. In a case where the applicant’s evidence has been rejected on the basis of credibility, it is not illogical that the tribunal rejected the documents said to corroborate the version of events, relying in part upon the widespread documentary fraud (see generally Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30). There is nothing about this decision to indicate that the tribunal member took the view that some form of independent corroboration was required.
I have regard to the tests set out in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 where the court said:
32. The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v State of NSW [2007] FCA 925 at [92] to [97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J.
33. Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
34. Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.
Considering this case as a whole, having listened to the hearing before the tribunal member, I am not persuaded that the applicant has made out this ground. I therefore refuse the application.
It was agreed between the parties that costs should follow the event in the sum of $7467. I therefore make a costs order in favour of the Minister in this amount.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 1 April 2019
0