AMF17 v Minister for Immigration & Anor
[2018] FCCA 1848
•11 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1848 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in making illogical and non-probative findings with respect to ASeTTS reports – findings of credibility by the Tribunal – fraudulent documents – whether the Tribunal erred in failing to consider relevant material – whether the Tribunal erred in failing to consider a claim – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 418(3), 424A |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 BXK15 v Minister for Immigration & Border Protection [2018] FCAFC 76 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | AMF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 61 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 April 2018 |
| Date of Last Submission: | 6 April 2018 |
| Delivered at: | Sydney and Perth by video-link |
| Delivered on: | 11 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D V Blades |
| Solicitors for the Applicant: | Cathal Smith Legal |
| Counsel for the First Respondent: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 23 January 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 19 July 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 61 of 2017
| AMF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 January 2017. The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
The applicant was initially unrepresented in these proceedings. Ultimately, he obtained legal representation and relied on 8 grounds in his “re-amended application (18 August 2017)”. Consideration of those grounds requires detailed analysis of some of the factual matters before the Tribunal as well as some of its findings. It is convenient first to set out a summary of the relevant facts to give some general context to the issues before the Court.
Background
The applicant is a citizen of Cameroon who arrived in Australia on a visitor visa on 18 July 2015. On 19 August 2015, he lodged an application for a protection visa. He claimed to fear harm for reason of his homosexuality. The applicant claimed that in January 2012 he and his partner, Tendoh Collins, were caught and badly tortured. This was not the first time that they had been caught, however on this occasion the mistreatment led to the death of Mr Collins. The applicant managed to escape but claimed that, after the death of his partner and the fact that his father was in opposition to the government on socio-economic issues, he was no longer safe and that the local community and the authorities were looking for him.
On 2 September 2015 the applicant’s agent submitted a number of documents in support of the applicant’s claims. These included newspaper articles and a letter from a secondary school teacher dated 18 August 2015 as well as a certificate from a medical centre.
The letter from the school teacher stated that the author had witnessed the predicament of the applicant once he had been identified as a homosexual and also referred to his father who was described as an influential figure in the leading opposition political party: Social Democratic Front (SDF). The author explained that the applicant’s sexual orientation and his father’s ideology caused the entire family to suffer from assaults and brutality from the regime.
The document from the medical centre described as being the “St. Ricardo Pampuri Clinic” stated that the applicant had been admitted into the clinic on 1 March 2005 as a result of an assault and then also on 3 December 2011 for injuries including bruises and abrasions, a swollen face and a black right eye.
On 6 October 2015 the applicant’s agent sent the Department a certified copy of the document from the medical centre as well as certified copies of the death certificate of Tendoh Collins and the letter from the school teacher.
On 24 November 2015 the applicant’s migration agent sent the Department a number of further documents in support of the applicant’s claim including two arrest warrants, one concerning the applicant, the other concerning Mr Collins. Both warrants noted that the relevant charge was “same sex relationship”.
On 19 July 2016 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that the applicant’s claims to be a homosexual were not credible. Amongst the reasons for that conclusion were that the applicant had voluntarily returned to Cameroon on three occasions since he had left after the death of Mr Collins, and the fact that he had not made any attempt to register with the UNHCR[1] in either South Korea or Malaysia to which he had travelled. The applicant applied to the Tribunal for review of the delegate’s decision.
[1] United Nations High Commissioner for Refugees.
By letter dated 24 August 2016, the Tribunal invited the applicant to attend a hearing to be conducted on 12 September 2016. On 5 September 2016, prior to the hearing, the applicant’s migration agent sent a written submission to the Tribunal. In that submission the applicant addressed the findings made by the delegate, including that concerning the applicant’s voluntary return to Cameroon and the fact that he had not sought protection in either Malaysia or South Korea. In addition, the applicant referred at, [11], to the documents that had been submitted in support of his claims including the warrants and medical certificate. He noted in particular that those documents were notarised by the “right authorities”.
The Tribunal conducted a hearing on 12 September 2016 but adjourned the matter to a later date as the applicant appeared to become emotional and to be crying. The hearing resumed on 6 October 2016 and the Tribunal made its decision on 23 January 2017.
Tribunal’s decision
The Tribunal found that the applicant was not a truthful, reliable or credible witness. There were, in essence, two reasons for that conclusion, both summarised in the following passage of the Tribunal’s reasons:
61.… The applicant has provided a number of fabricated and counterfeit documents to the delegate and to the Tribunal. The counterfeit documents including a purported newspaper article, and a purported letter from newspaper relate directly to his claims of being a homosexual, and his claimed mistreatment in Cameroon for reasons of his claimed homosexuality. In addition to the provision of false documents, the Tribunal found the applicant’s oral evidence to be unconvincing where, for example, he spoke of his sexuality and of being a homosexual. …
(Without correction)
The Tribunal found that the applicant was not a homosexual and had not been in a homosexual relationship with Tendoh Collins or anyone else in Cameroon: [63], [65]. As a consequence, it did not accept that the applicant had been beaten in January 2012, at the markets in 2005 or at a party in 2011: [67]. The Tribunal did not accept that the applicant’s family or anyone else in Cameroon viewed him as a homosexual, that the authorities would target him on the basis of his sexuality or that his family would receive threats for that reason: [68]. The Tribunal also rejected the claim concerning the newspaper article and arrest warrant: [69], [70].
The Tribunal also considered 2 reports from the Association for Services to Torture and Trauma Survivors (ASeTTS) relied on by the applicant and stated:
[72]… It has also considered the applicant’s evidence that he did not speak of his sexuality with the ASeTTS counsellor. The Tribunal notes these reports refer to the applicant reporting symptoms of anxiety and depression. The Tribunal notes the report dated 28 September 2016 states the applicant reported there were no cultural or gender barriers that may have interfered with the assessment. Having considered all the evidence, and the ASeTTS reports, the Tribunal does not finds they advance the applicant’s claims as to his sexuality, or support his claim that he fears serious harm for reasons of his sexuality, or for any other reason, if he returns to Cameroon. Further, the Tribunal considers the evidence that the applicant failed to disclose his claimed homosexuality to his counsellor in all the circumstances, further undermines his claim to be a homosexual.
(Without alteration)
The Tribunal went on to consider the applicant’s travel to Thailand and South Korea [73], fraudulent Finnish residence documents obtained by him [74], his religion [75], the applicant’s return to Cameroon after his father’s death in 2005 [76], and the possible effect of the applicant’s departure from Cameroon [77].
On the basis of its factual findings, the Tribunal was not satisfied that the applicant faced a real chance of serious harm amounting to persecution, now or in the reasonably foreseeable future, if he returned to Cameroon: [78]. This finding meant that the Tribunal was not satisfied that the applicant met the criterion for a protection visa in sub-s.36(2)(a) of the Migration Act 1958 (Cth). It applied the same factual findings to its consideration of the criterion in sub-s.36(2)(aa) of the Act and concluded that it, too, was not met: [81].
For those reasons the Tribunal affirmed the delegate’s decision.
Consideration
First ground: errors concerning the ASeTTS reports
This ground focuses on the way in which the Tribunal dealt with the 2 reports from ASeTTS relied on by the applicant. The Tribunal stated, at [72]:
a)the ASeTTS reports did not “advance the applicant’s claims as to his sexuality, or support his claim that he fears serious harm for reasons of his sexuality, or for any other reason, if he returns to Cameroon”; and
b)the evidence that the applicant “failed to disclose his claimed homosexuality to his counsellor in all the circumstances, further undermines his claim to be a homosexual”.
The applicant argued that both of those statements were made without any logical or probative basis given the applicant’s evidence that he had disclosed his sexuality to the first ASeTTS counsellor and that the purpose of the reports was to provide an assessment of the applicant’s current mental state and recommendation for care. In his written and oral submissions, the applicant focussed on the second statement, arguing that it was mistaken and, given its place in the Tribunal’s assessment of the applicant’s credibility, amounted to jurisdictional error.
The Minister argued that the Tribunal’s findings did have a logical and probative basis given, first, that the reports did not refer to the applicant’s sexuality and contained only vague references to “difficult experiences back home” and, secondly, that the Tribunal was referring to the fact that the applicant did not tell his second ASeTTS counsellor about his homosexuality, a matter which was correct.
The first part of this ground may be dealt with briefly. Neither of the ASeTTS reports went further than noting, at a very high level, the applicant’s “traumatic past” and “traumatic memories”, stating an opinion about the applicant’s current mental state and making suggestions about future treatment. In those circumstances, it was open to the Tribunal to conclude that neither report advanced “the applicant’s claims as to his sexuality, or support his claim that he fears serious harm for reasons of his sexuality, or for any other reason”. Simply put, as there was no mention in the reports of the cause, or details of the applicant’s past or memories, the reports were not corroborative of those aspects of the applicant’s claims. The fact that an applicant has had a traumatic past is, without more, neutral as to the cause of the trauma.
The second part of this ground requires more analysis.
At the hearing, the Tribunal member told the applicant (T:5.5) that he was worried about his claims and then asked him whether he had spoken about his sexuality to anyone in the immigration detention centre. The following discussion ensued:
Applicant:I have not spoken to too many people about my sexuality except my case managers.
Tribunal:So, apart from myself and apart from your case manager and also, anyone else at all you have spoken to?
Applicant:I have not spoken to anyone else, even the ASSETTS people, I have never mention about my sexuality to them.
If the applicant’s evidence on this topic had stopped there, there would be no merit at all in this ground. However, the discussion went on:
Tribunal:Why not?
Applicant:Because they have never asked me any question about the exact status of my situation, what happened to me.
Tribunal:The issue is not them asking you question. I would have thought, you would have perhaps told them about your circumstances if you are so worried about it.
Applicant:The person I told about was Jabrulla. Jabrulla was aware about my situation and there was one time Jabrulla was asking me if I can have another relationship here in Australia. I said, with the situation I’m going through, I have not finish what I’m going through. I’m not thinking about a relationship for now.
Tribunal:Sorry, who is Jabrulla?
Applicant:Jabrulla was the ASSETTS officer.
Tribunal:So you said, you haven’t spoken to the ASSETTS counsellor about it but you have spoken to Jabrulla who is the ASSETTS case officer. Is that right?
(Without alteration except for emphasis)
Pausing there, it may be noted that the emphasised part of the applicant’s evidence in this passage is ambiguous. It is not clear what he meant by his “situation”. However, as will appear, that ambiguity was clarified and, in any event, the emphasised part of the Tribunal’s last statement shows that it thought that the applicant was talking about his sexuality. The evidence continued:
Applicant:Jabrulla is the ASSETTS counsellor I have spoken to. The first ASSETTS officer I had was Jabrulla who is a male. That was the first person I was seeing before now, I’m seeking a female. I’m not comfortable talking about issues like that with a female like Bonnie but I was comfortable to speak to Jabrulla.
Tribunal:And is Jabrulla a man or a woman?
Applicant:A man.
Tribunal:So you are saying you are not comfortable talking to your current ASSETTS case officer or counsellor?
Applicant:Yes, about matters concerning my sexuality.
Tribunal:And so apart from Jabrulla and your case officer and myself, you haven’t spoken to anyone else about your sexuality?
(Without alteration)
For the sake of clarity, it may be noted that Jabrulla was the author of the ASeTTS report dated 8 June 2016 and Bonnie was the author of the report dated 28 September 2016.
In its reasons, the Tribunal summarised this aspect of the hearing at [39]:
The Tribunal asked the applicant whether he had spoken to anyone else about his sexuality. He said he had not. He then said he had spoken about it with his case manager and with the Tribunal, however he had not raised it at his counselling session with ASeTTS. He said he is not comfortable talking about his sexuality with his counsellor.
That summary is inaccurate insofar as it omits any reference to the applicant’s evidence that he had told his first counsellor about his sexuality.
The Tribunal returned to the topic in its findings:
[72]The Tribunal has also considered the copy of a Torture and Trauma Assessment Report submitted to the Tribunal by the applicant and prepared by the Association for Services to Torture and Trauma Survivors (ASeTTS). It has also considered the applicant’s evidence that he did not speak of his sexuality with the ASeTTS counsellor. The Tribunal notes these reports refer to the applicant reporting symptoms of anxiety and depression. The Tribunal notes the report dated 28 September 2016 states the applicant reported there were no cultural or gender barriers that may have interfered with the assessment. Having considered all the evidence, and the ASeTTS reports, the Tribunal does not finds they advance the applicant’s claims as to his sexuality, or support his claim that he fears serious harm for reasons of his sexuality, or for any other reason, if he returns to Cameroon. Further, the Tribunal considers the evidence that the applicant failed to disclose his claimed homosexuality to his counsellor in all the circumstances, further undermines his claim to be a homosexual.
(Emphasis added, error in the original)
In spite of the reference in the first line to a single report, the paragraph makes clear that the Tribunal was aware of, and had considered, two reports. That supports the conclusion, pressed by the Minister, that the Tribunal was aware that there were two counsellors and that its concerns about the applicant’s failure to disclose his sexuality was in respect of only one of them. However, the inaccuracy in the Tribunal’s earlier summary of the relevant part of the hearing undermines that conclusion.
The better view is that, in addressing what the applicant had not told his “counsellor”, the Tribunal overlooked the evidence that the applicant had told one counsellor, but not the other. That, however, is not the end of the inquiry. The remaining, and far more difficult, question, is whether, in doing so, the Tribunal fell into jurisdictional error. As is shown by the decision of the Full Court of the Federal Court in BXK15 v Minister for Immigration & Border Protection [2018] FCAFC 76, minds can differ about the effect of the failure to consider evidence, especially in circumstances where, as here, there are significant findings of credit.
Although it was a decision of a single judge, the leading decision in respect of this question is that of Robertson J in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99. According to SZRKT, the fundamental question is the importance of the overlooked material to the exercise of the Tribunal’s function and the seriousness of the error: see SZRKT at [112], Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [29].
Here, the omission by the Tribunal led it to proceed on the basis that the applicant had not acted consistently with his claimed fear of harm and, in that way, the omission formed part of its reasons for rejecting his claim.
There were a number of other reasons given by the Tribunal for rejecting the applicant’s claims. These included, in summary, the fact that he had provided fabricated documents and that the Tribunal found his evidence about his sexuality was unconvincing: [61]. However, it was critical to the Tribunal’s decision that it rejected the applicant’s claim to be homosexual. That means that the credit finding was an important part of the exercise of the Tribunal’s function.
In BXK15, North and Charlesworth JJ agreed with the primary judge that the Tribunal had not considered a number of witness statements. However, they found that her Honour erred in finding that that had not resulted in jurisdictional error. They explained, at [23]:
In our view, the critical question is not whether the Tribunal was likely to view the statements with scepticism. Nor is it correct to ask whether the two witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal’s reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal’s reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical question is whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged in its own reasoning process.
That passage reflects what was said by Robertson J in SZRKT at [120] and in a decision relied on by his Honour, VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (although that decision was decided on the basis of a denial of procedural fairness).
Given the importance of the credit findings to the Tribunal’s decision in this case, and the part played in that by the applicant’s failure to reveal his homosexuality, the Tribunal’s failure to take into account the evidence that the applicant had in fact spoken to his counsellor about his sexuality amounted to jurisdictional error.
The first ground succeeds and, there being no reason to withhold relief, writs of certiorari and mandamus will issue.
Ground 2: error relating to the Medical Centre document
This ground concerns the document provided by the applicant purporting to be from the St Ricardo Pampuri Clinic. The Tribunal found that the document was fraudulent on the basis of advice received from the Department of Immigration. That advice was based on a visit to the St Riccardo Pampuri Medical Centre during which the following information was obtained:
a)the letterhead of the document was not consistent with the genuine letterhead used by the company;
b)the contact details appearing on the letterhead presented by the applicant were not the contact details for the company;
c)the stamp appearing on the document was inconsistent with the genuine stamp used by the company; and
d)the letter was not genuinely issued by the company.
The applicant argues that, in light of the following, it was not open to the Tribunal to reject the authenticity of the document on the basis of the information:
i)the document was on the letterhead of “St Ricardo Pampuri Clinic” not “St Riccardo Pampuri Medical Centre”;
ii)the stamp on the document is consistent with the letterhead;
iii)there is no reference to a company in the document; and
iv)the Tribunal did not provide the applicant with a copy of the official response from the medical centre which was the source of the information.
The Minister argues that the Tribunal’s finding about this document was open on the basis of the information obtained by the Department from Cameroon.
The difference in the names on the certificates in question is perplexing. The evidence supports the following conclusions. First, an officer attended the St Riccardo Pampuri Medical Centre to seek assistance in verifying the letter presented by the applicant. Secondly, on 24 October 2016 a general practitioner (Médecin-Généraliste) made a hand written note on the letterhead of “St Riccardo Pampuri Medical Centre” to the effect that he or she was the proprietor of the “establishment”, had seen a medical certificate for the applicant dated “August 7th, 2015” and that it was “neither written nor signed by us, the letter-head itself is fake”. Thirdly, the applicant’s medical certificate had an address in the same town as appeared on the other certificate.
From those several facts it is possible to infer either that there were 2 medical clinics in Kumba, Cameroon, one named St Riccardo Pampuri Medical Centre, and the other, St Ricardo Clinic Medical Centre or that there was only one (St Riccardo Pampuri Medical Centre) and that the certificate relied on by the applicant was fake. The latter inference is supported by the fact that a person went to a clinic and was told by the proprietor that the applicant’s certificate was fake. More importantly, the proprietor did not say that the certificate came from another clinic in the same town. In my view, it would be unlikely for a person to say that a certificate is fake when there was, in fact, a clinic with a very similar name in the same town and that name appeared on the certificate. In any event, it is unnecessary to come to a final conclusion about that and necessary only to record that there were at least two possible inferences open on the material, one of which was clearly adopted by the Tribunal.
Once it is accepted that it was open to the Tribunal to find that the applicant’s certificate was fake, nothing arises from the differences in the names of the Clinic on the respective documents. Similarly, nothing arises from the fact that there was no reference to a “company”, or that the stamp on the applicant’s document was the same as the name on the letterhead. Those matters support, but do not compel, an alternative conclusion. It would be similarly irrelevant to note other matters that could have supported the Tribunal’s conclusion, such as the apparent misspelling of “Riccardo” on the applicant’s document.
The final point made by the applicant is also rejected. There is no general obligation on the Tribunal either at common law or under s.424A of the Act to give the applicant a copy of any document containing adverse information or to identify its source: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 95-96 [15], 100 [29]; Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 at [27].
Ground 3: breach of s.424A of the Act in respect of the information about the Medical Centre document
The applicant claims that, in breach of s.424A of the Act, the Tribunal failed to invite the applicant to comment on the official response to a query by the Department, in Cameroon, concerning the document purporting to be from the St Ricardo Pampuri Clinic.
On 22 November 2016 the Tribunal wrote to the applicant, stating that it had information concerning the applicant’s medical certificate including that “the medical centre has confirmed the document was neither written or [sic] signed by it and that the letter is fake.” It explained that, if that information were accepted, the Tribunal may conclude that the applicant had fabricated his evidence and that he was not a reliable witness and so not accept his claims. That letter clearly referred to the information from the official response from the St Riccardo Pampuri Medical Centre referred to above and complied with the obligation under s.424A to provide “clear particulars” of the information in it and to explain why that information was relevant to the decision to be made on the review.
This ground is rejected.
Ground 4: failure to consider relevant material – arrest warrants
In this ground the applicant argues that the Tribunal rejected the applicant’s claims to be subject to warrants of arrest without examining the warrants themselves and determining whether they were genuine.
The Minister argued that it was clear that the Tribunal had considered the warrants from its discussion of them at the hearing and that it was implicit in its reasons that it rejected their authenticity.
In his visa application the applicant claimed that a warrant had been issued for his arrest. On 24 November 2015 the applicant’s agent sent the Department a “certified copy of an arrest warrant issued against” the applicant for reasons of his homosexuality. In fact, the agent sent documents purporting to be arrest warrants in respect of both the applicant and Mr Collins in relation to charges for “same sex relationship”.
On 5 September 2016 the applicant sent submissions to the Tribunal in which he specifically addressed the arrest warrants.
At the hearing, the Tribunal asked the applicant about the arrest warrants: Affidavit of Allyson Helen Ladhams affirmed 17 October 2017, Annexure AHL3 p.2 line 40.
In its statement of reasons the Tribunal referred expressly to the applicant’s submissions of 5 September 2016, stating that it had considered the “submissions … where he addresses … warrants of arrest”: [9].
At [44] of its reasons, as part of its summary of the hearing, the Tribunal noted that it had referred to the part of the delegate’s reasons which considered the warrants of arrest.
At [70] the Tribunal stated that it had “considered the applicant’s claim that warrants for his arrest” but did not accept that there were any such warrants in light of its conclusion that the applicant was not a homosexual and had provided fabricated documents to the Tribunal. Again, at [77], the Tribunal stated that it did not accept that the applicant was the subject of arrest warrants.
In the face of all of those references it cannot reasonably be concluded that the Tribunal simply overlooked the arrest warrants. I conclude, rather, that the Tribunal did consider them, but rejected them as fabricated as it had in respect of other documents presented by the applicant.
This ground is rejected.
Ground 5: further failure to consider material – certified medical document
The applicant claims that the Tribunal fell into error by failing to consider a certified copy of the document purporting to be from the St Ricardo Pampuri Clinic sent to the Department on 6 October 2015 or, alternatively, an uncertified copy of the same document sent to the Department on 1 September 2015.
The Minister argues that the certified document was not before the Tribunal and, in the circumstances, there was no error arising from its failure to consider the document. He argues that the Tribunal did consider (and reject) the uncertified document.
The uncontested evidence before the Court was that, although the certified copy of the certificate was sent to the Department, it was not sent by the Secretary of the Department to the Tribunal in accordance with s.418(3) of the Act. That provision requires the Secretary to provide to the Tribunal “each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”
In BBS15 v Minister for Immigration & Border Protection (2017) 248 FCR 159 the Full Court of the Federal Court considered the effect of a failure by the Secretary to send documents to the Tribunal in accordance with s.418(3). The Court found, at [105], that subject to the possibility of an extreme case as adverted to in SZOIN v Minister for Immigration & Citizenship (2011) 191 FCR 123, such a failure did not result in a jurisdictional error affecting the Tribunal’s decision. The Court explained the qualification in SZOIN at [103]:
However, the plurality appears to have accepted that there might be an extreme case where the Secretary’s failure to give the Tribunal a document would be “so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view” (at [54]). Moreover, the plurality, at [64], cited with approval Perram J’s reasoning in SZNZK at [20] that:
an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal.
Given that the Tribunal did consider the uncertified document and had a proper basis for rejecting it, the circumstances referred to in SZOIN did not arise here and the ground must be rejected.
Ground 6: further failure to consider material – death certificate for Tendoh Collins
The applicant contends that the Tribunal failed to consider material potentially corroborative of his relationship with Mr Collins, namely Mr Collins’ death certificate.
The Minister argues, once again, that the death certificate was not forwarded by the Department to the Tribunal and that, in the circumstances, there was no error in its failure to consider it. For the reasons given in respect of ground 5 this argument must be accepted.
Ground 7: irrelevant considerations – failure to seek asylum in Thailand or South Korea
The applicant argued that the Tribunal erred in relying on the applicant’s failure to apply for asylum in either Thailand or South Korea as a basis for its conclusions on the applicant’s credibility (at [73] of its reasons) because neither of those countries is a signatory to the Refugees Convention[2]. He also argues that the Tribunal failed to take into account his oral evidence that he had sought protection in Thailand or the applicant’s written evidence about South Korea.
[2] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967.
The Minister argued that the Tribunal did consider the applicant’s evidence about seeking asylum in Thailand but rejected it ([35] and [73]) and also the written evidence about South Korea ([9]). Further, he argued that the failure to seek protection in Thailand and South Korea was not irrelevant in the sense required to give rise to jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.
Neither party referred the Court to any authority, for or against the proposition, that the failure to seek protection in a country that is not a signatory to the Refugees Convention is legally irrelevant to the determination of whether a person satisfies the criteria for the grant of a protection visa in Australia. The applicant’s case is supported by a statement by Kirby and Heydon JJ in rejecting an application for special leave: SZKPN v Minister for Immigration & Citizenship [2008] HCASL 500. However, leaving to one side the precedent value of the statement, what their Honours said applies equally to this ground and is a reason for rejecting it:
[8]... Although the Tribunal's reference to the failure to seek protection in Thailand was legally irrelevant, because Thailand is not a signatory to the Refugees Convention, when this element is excised from the decision there remain extremely powerful factual findings, sufficient to support the decisions below. The application for special leave is therefore dismissed.
There were here, as in that case, powerful factual findings sufficient to support the conclusion of the Tribunal.
Alternatively, the question whether the failure to seek protection in Thailand or South Korea was legally irrelevant depends on the type of protection that was envisaged. It was the applicant’s case that he had in fact sought protection in Thailand by contacting human rights organisations and that he travelled to South Korea with the hope of securing full protection there, but did not do so because, amongst other reasons, he found that there was no permission to work and there was a long waiting period. The Tribunal did not find that evidence convincing. In the absence of any direct authority, it appears to me that the failure by an applicant to take some steps to avoid being returned to his or her country of nationality, and so avoid persecution, is probative of a lack of fear. The available inference is similar, though not the same as, that which may be drawn by the delay by an applicant in seeking protection after arriving in Australia: see Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALR 347 at [11].
Ground 8: failure to consider a claim – harm for reason of the applicant’s father’s opposition to the government
This ground is that the Tribunal erred by failing to consider the claim that the applicant faced harm in Cameroon as a result of his father’s political activity.
The Minister did not contend that the Tribunal did not consider a claim based on the political activity of the applicant’s father but argued that there was no such claim made by the applicant, or that arose on the material. I disagree.
In his visa application, the applicant expressly raised the claim that he faced persecution on account of his father’s opposition to the government. This claim was later fortified by a letter dated 18 August 2015 from a former teacher of the applicant entitled “A Life Story for [applicant]” which relevantly stated:
... His father was known all over the town of [name]. Again, he use to go on air in local radio to express his dissatisfaction on the political and socio-economic situation in Cameroon. His father was known more as a strong opposition to the Biya’s regime (based on his radio interviews). He was an influential figure in the leading opposition political party – Social Democratic Front (SDF). His father was a no-nonsense man who upheld the values of truth – something the Paul Biya’s regime in Cameroon was not comfortable with. [The applicant’s] sexual orientation and his father’s political ideology caused the entire family to suffer from assaults and brutality from the regime. ...
While the Tribunal ultimately gave little weight to that letter (see [65]), the claim made in it, and the applicant’s earlier statement, survived.
It may be accepted, as submitted by the Minister, that the predominant claim made by the applicant rested on his sexuality, and that little was said about the possible impact on the applicant of his father’s political profile. It may also be accepted that the applicant’s conduct of his application for review before the Tribunal may be taken into account when determining whether the Tribunal is obliged to consider a particular claim: Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48 at [36] (cf. Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203). However, on the facts of this case, the claim based on the political opinion of the father remained one that had to be considered on a proper conduct of the review. Indeed, the Tribunal acted on the basis that the documents in which the claim was made had to be considered. In those circumstances, its failure to deal with the claim meant that it constructively failed to review the delegate’s decision.
Conclusion
The Tribunal’s decision was affected by jurisdictional error. The decision must be set aside and the Tribunal ordered to complete its review of the delegate’s decision according to law.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 11 July 2018
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